City Council Regular Meeting

J MINUTES OF CITY OF WHARTON REGULAR CITY COUNCIL MEETING MAY 10, 2021 Mayor Tim Barker declared a Regular Meeting duly open for the transaction of business at 7: 00 P.M. at City Hall 120 E. Caney Street Wharton, TX. Councilmember Russell Machann led the opening devotion and Mayor Tim Barker led the pledge of allegiance. Councilmember' s present were: Mayor Tim Barker and Councilmembers Terry Freese, Alice Heard- Roberts, Clifford Jackson, Russell Machann, Don Mueller and Steve Schneider. Councilmember absent was: None. Staff members present were: City Manager Andres Garza, Jr., City Attorney Paul Webb, Finance Director Joan Andel, City Secretary Paula Favors, TRMC, CPM, MMC, Assistant to the City Manager Brandi Jimenez, Public Works Director Anthony Arcidiacono, Fire Chief Anthony Abbott, Building Official Ronnie Bollom and Community Development Director Gwyn Teves. Visitors present were: Joseph R. Pace and Burnell Neal. Roll Call and Excused Absences. All members were present. Public Comments. Mayor Tim Barker called for Public Comments. No comments were made. Wharton Moment. Mayor Tim Barker called for Wharton Moments. Review and Consider: The first item on the agenda was to review and consider the reading of the minutes from the regular meetings held April 12, 2021 and April 26, 2021 and Special Meeting held on April 20, 2021. After some discussion, Councilmember Russell Machann moved to approve reading of the minutes from the regular meetings held April 12, 2021 and April 26, 2021 and Special Meeting held on April 20, 2021. Councilmember Terry Freese seconded the motion. All voted in favor. The second item on the agenda was to review and consider Ordinance: An ordinance canvassing the election returns and declaring the results of the City Officers' Election held May 1, 2021. City of Wharton Regular City Council Meeting Page 2 of 33 Ordenanza: Una ordenanza haciendo el escrutinio y declarando los resultados de la eleccion de concejales municipales que se celebro el 1 de mayo de 2021. City Manager Andres Garza, Jr. presented a copy of a draft ordinance canvassing the election returns and declaring the results of the City Officers' Election held May 1, 2021. After some discussion, Councilmember Terry Freese moved to approve City of Wharton Ordinance No. 2021- 06A and 2021- 0613, which read as follows: CITY OF WHARTON, TEXAS ORDINANCE NO. 2021- 06A AN ORDINANCE CANVASSING THE ELECTION RETURNS AND DECLARING THE RESULTS OF THE CITY OFFICERS' ELECTION HELD ON MAY 1, 2021 BE IT ORDAINED by the City Council of the City of Wharton, Texas: The City Council ofthe City of Wharton, Texas has canvassed the returns of the city officers' election held on the 1st of May 2021, and the City Council finds and declares that the election returns were duly and legally made, that all of the votes counted at the election were valid and legal, and that each of the candidates in the election received the following numbers of votes: Election Returns Early Votes Election Day Total The City Council further finds and declares that the election was duly called, that notice of the election was given in accordance with law, that the election was held in accordance with law, that Clifford Jackson was elected Councilmember District No. 1, Terry Freese was elected Councilmember District No. 3, and Russell Machann was elected Councilmember District No. 5 — At Large. The City Council declares the above-named persons to be duly elected to the above-named offices, subject to the taking of their oaths of office as provided by the laws of the State of Texas and the charter of the City of Wharton, Texas. Severability If any court of competent jurisdiction rules that any section, subsection, sentence, clause, phrase, or portion of this resolution is invalid or unconstitutional, any such portion shall be deemed to be a separate, distinct, and independent provision, and any such ruling shall not affect the validity of the remaining portions hereof. Passage and Approval PASSED AND APPROVED by the City Council of the City of Wharton, Texas, on the 10th of May 2021. City of Wharton Regular City Council Meeting Page 3 of 33 CITY OF WHARTON, TEXAS By: TIM BARKER Mayor ATTEST: PAULA FAVORS City Secretary APPROVED AS TO FORM: PAUL WEBB City Attorney CIUDAD DE WHARTON, TEXAS ORDENANZA NUMERO 2021- 06B UNA ORDENANZA HACIENDO EL ESCRUTINIO Y DECLARANDO LOS RESULTADOS DE LA ELECCION DE FUNCIONARIOS MUNICIPALES QUE SE CELEBRO EL 1 DE MAYO 2021 ASi SE ORDENA por el Consejo Municipal de la Ciudad de Wharton, Texas: El Consejo Municipal de la Ciudad de Wharton, Texas, ha escudrinado los resultados de las elecci6n de funcionarios municipales celebrada el 1 de mayo 2021, y el Consejo Municipal halla y declara que los resultados de la elecci6n fueron debidamente y legalmente hechos, que todos los votos de la elecci6n contados fueron validos y legales, y que Cada uno de los candidatos en la elecci6n recibieron los numeros de votos siguientes: Votaci6n Dia de la Total anticipada elecci6n Concejal para el Distrito No. 1 City of Wharton Regular City Council Meeting Page 4 of 33 Clifford Jackson 84 130 46 Sin oponente Concejal para el Distrito No. 3 Terry Freese 132 84 216 Sin oponente Concejal para la Posicion No. 5— En forma irrestricta Russel Machann 208 127 335 Jacques Hearse 172 122 294 Resultados de la eleccibn El Consejo Municipal tambidn determina y declara que la eleccibn fie debidamente convocada, que el aviso de la eleccibn se dio de acuerdo con la ley, que la eleccibn misma se celebr6 de acuerdo con la ley, que Clifford Jackson fue elegido Concejal para el Distrito No. 1, Terry Freese fie elegido Concejal para el Distrito No. 3. y que Russell Machann fue elegido Concejal para la Posici6n No. 5— en forma irrestricta. El Consejo Municipal declara que las personas arriba mencionadas han sido debidamente elegidas a los puestos arriba mencionadass, pendiente que hagan sus juramentos de sus cargos como se requiere segun las leyes del Estado de Texas y la carta constitutiva de la Ciudad de Wharton, Texas. Divisibilidad Si cualuier tribunal com etente con Jurisdiccion declara cual uier seccion, sub secci6n, frase, clausula, frase, o parte de esta resoluci6n invalida o no constitucional, dicha parte se considerara ser una disposicion aparte, distinta, a independiente, y dicha decision no afectara la validez de las disposiciones restantes. Autorizaci6n y Aprobacion City of Wharton Regular City Council Meeting Page 5 of 33 AUTORIZADA y APROBADA por el Consejo Municipal de la Ciudad de Wharton, Texas, el 10 de mayo 2021. CIUDAD DE WHARTON, TEXAS Por: TIM BARKER Alcalde ATESTIGADO POR: PAULA FAVORS Secretaria Municipal APROBADO EN TANTO A FORMA: PAUL WEBB Abogado de la Ciudad Councilmember Alice-Heard Roberts seconded the motion. All voted in favor. The third item on the agenda was to Administer: Oath of Office to Elected Officials: Councilmembers Clifford Jackson, Terry Freese and Russell Machann. City Attorney Paul Webb administered the Oath of Office to Councilmembers Clifford Jackson, Terry Freese and Russell Machann. The fourth item on the agenda was to review and consider the Appointment of Mayor Pro- Tem. City Manager Andres Garza, Jr. stated that per Section 15 of the City Charter following a regular annual election and upon the induction of the newly elected members of the governing body into office, the members of the City Council shall elect one of the Councilmembers to be Mayor Pro- Tem. After some discussion, Councilmember Russell Machann moved to appoint Councilmember Don Mueller to the position of Mayor Pro- Tem. Councilmember Terry Freese seconded the motion. All voted in favor. The fifth item on the agenda was to review and consider a request by Mr. Releford requesting a temporary variance of Chapter 38- Manufactured Housing, Mobile Homes and Travel Trailers; Article II- Requirements Concerning Mobile Homes, Manufactured Housing and Travel Trailers; Division 3- Recreational Vehicles, allowing him to place and live in a Travel Trailer at 402 Wilkes Street as temporary housing for one ( 1) year while constructing a new home. City Manager Andres Garza, Jr. presented a copy of a request by Mr. Releford requesting a temporary variance of Chapter 38- Manufactured Housing, Mobile Homes and Travel Trailers; Article II-Requirements Concerning Mobile Homes, Manufactured Housing and Travel Trailers; Division 3- Recreational Vehicles, allowing him to place and live in a Travel Trailer at 402 Wilkes Street as temporary housing for one ( 1) year while constructing a new home. Community Development Director Gwyn Teves stated City of Wharton Regular City Council Meeting Page 6 of 33 Mr. Bollom had presented a notice to Mr. Releford and Mr. Releford had completed an application for the request. After some discussion, Councilmember Don Mueller moved to approve a temporary variance of Chapter 38- Manufactured Housing, Mobile Homes and Travel Trailers; Article II-Requirements Concerning Mobile Homes, Manufactured Housing and Travel Trailers; Division 3- Recreational Vehicles, allowing him to place and live in a Travel Trailer at 402 Wilkes Street as temporary housing for one ( 1) year while constructing a new home. Councilmember Clifford Jackson seconded the motion. All voted in favor. The sixth item on the agenda was to review and consider a request from the Wharton County Recovery Team for temporary variances of Chapter 38- Manufactured Housing, Mobile Homes and Travel Trailers; Article II-Requirements Concerning Mobile Homes, Manufactured Housing and Travel Trailers; Division 3- Recreational Vehicles on the following addresses: 1. 905 West Burleson Street- expired 12/ 1/ 2020. 2. 305 Black Street- expired 5/ 5/ 2020. 3. 1605 Goode Street- no expiration set at time of approval. 4. 517 Black Street- no expiration set at time of approval. Community Development Director Gwyn Teves stated the Wharton County Recovery Team had requested and received temporary variances of Chapter 38- Manufactured Housing, Mobile Homes and Travel Trailers; Article II-Requirements Concerning Mobile Homes, Manufactured Housing and Travel Trailers; Division 3- Recreational Vehicles on the following addresses: 1. 905 West. Burleson-expired 12/ 1/ 2020. 2. 305 Black Street-expired 5/ 5/ 2020. 3. 1605 Goode Street- no expiration set at time of approval. 4. 517 Black Street-no expiration set at time of approval. Mrs. Teves stated that it was the City Staff' s recommendation that the extensions be approved for six months from 5/ 10/ 2021 and an PP expiration of 11/ 10/ 2021 be set for the p remaining two without current expirations. She said that at the end of the term the tenants would be required to make other living arrangements or come back to the City Council for additional extensions. After some discussion, Councilmember Alice Heard- Roberts moved to approve the request from the Wharton County Recovery Team for temporary variances of Chapter 38- Manufactured Housing, Mobile Homes and Travel Trailers; Article II- Requirements Concerning Mobile Homes, Manufactured Housing and Travel Trailers; Division 3- Recreational Vehicles on the afore mentioned addresses for six months from 5/ 10/ 2021 and an expiration of 11/ 10/ 2021 be set for the remaining two without current expirations. Councilmember Clifford Jackson seconded the motion. All voted in favor. The seventh item on the agenda was to review and consider a request by Mr. George Villarreal on behalf of Wharton Partners LLC for the following: City of Wharton Regular City Council Meeting Page 7 of 33 A. 10' side building line setback variance from the required 25' setback for the corner ofKelley Street & Rusk Street, Wharton, Block 48, Lot 2 for a new multifamily construction. B. 3' rear building line setback from the required 5' setback for accessory buildings for placement of the trash containment. City Manager Andres Garza, Jr. presented a copy of the request by Mr. George Villarreal on behalf of Wharton Partners LLC for the following: A. 10' side building line setback variance from the required 25' setback for the corner of Kelley Street& Rusk Street, Wharton, Block 48, Lot 2 for a new multifamily construction. B. 3' rear building line setback from the required 5' setback for accessory buildings for placement of the trash containment. Community Development Director Gwyn Teves stated the Planning Commission met on Monday, May 3, 2021 and voted to recommend this item to the City Council for consideration. After some discussion, Councilmember Terry Freese moved to approve request by Mr. George Villarreal on behalf of Wharton Partners LLC for 10' side building line setback variance from the required 25' setback for the corner of Kelley Street & Rusk Street, Wharton, Block 48, Lot 2 for a new multifamily construction and a 3' rear building line setback from the required 5' setback for accessory buildings for placement of the trash containment. Councilmember Russell Machann seconded the motion. All voted in favor. The eighth item on the agenda was to review and consider a request by Ms. Marchette Marks for the following: A. 6' front building line setback variance from the required 25' setback for 601 Cedar Circle, Wharton, Block 57, Lot 8A. B. Waiver of the $ 100 Variance Application Fee. City Manager Andres Garza, Jr. presented a copy of a request by Ms. Marchette Marks for the following: A. 6' front building line setback variance from the required 25' setback for 601 Cedar Circle, Wharton, Block 57, Lot 8A. B. Waiver of the $ 100 Variance Application Fee. Community Development Director Gwyn Teves stated the Planning Commission met on Monday, May 3, 2021 and voted to recommend this item to the City Council for approval. After some discussion, Councilmember Alice Heard- Roberts moved to approve the request by Ms. Marchette Marks for the 6' front building line setback variance from the required 25' setback for 601 Cedar Circle, Wharton, Block 57, Lot 8A and a waiver of the $ 100 Variance Application Fee. Councilmember Clifford Jackson seconded the motion. All voted in favor. The ninth item on the agenda was to review and consider a resolution of the Wharton City Council approving a Lease Agreement between the City of Wharton and Hesed House of Wharton for use of the Dickson Rowan House located in Dinosaur Park, 421, 421A& 421B Colorado Street and authorizing the Mayor of the City of Wharton to execute all documents City of Wharton Regular City Council Meeting Page 8 of 33 related to said agreement.City Manager Andres Garza, Jr. stated that on September 9, 2019, the Wharton City Council approved a lease with Hesed House of Wharton, a nonprofit 501( c) 3 organization, for the lease of the Dickson Rowan House at Dinosaur Park. City Manager Garza said Hesed House had been providing numerous services to the community since opening as outlined in the original lease agreement beginning on November 13, 2018. Community Development Director Gwyn Teves stated that on April 26, 2021, Ms. Konvicka presented a proposal to the City Council Parks and Recreation Committee and the City Council for an expansion of services and extension of the current lease to include the three 3) adjoining houses at 421, 421A and 421B Colorado Street owned by the City of Wharton. Mrs. Teves said the new lease with Hesed House would include the other houses at Dinosaur Park, 421, 421 A & 421 B Colorado Street for a term of ten ( 10) years with a one ( 1) time renewal of five ( 5) After some discussion, Councilmember Terry Freese moved to years. approve City of Wharton Resolution No. 2021- 49, which read as follows: CITY OF WHARTON RESOLUTION NO. 2021- 49 A RESOLUTION OF THE WHARTON CITY COUNCIL APPROVING A LEASE AGREEMENT BETWEEN THE CITY OF WHARTON AND HESED HOUSE OF WHARTON FOR USE OF THE DICKSON ROWAN HOUSE LOCATED IN DINOSAUR PARK, 421, 421A & 421B COLORADO ST. AND AUTHORIZING THE MAYOR OF THE CITY OF WHARTON TO EXECUTE ALL DOCUMENTS RELATED TO SAID AGREEMENT. WHEREAS, The City of Wharton wishes to approve a lease agreement with Hesed House of Wharton and to enter into said agreement as per the requirements set forth in said agreement( Attachment A.); and, WHEREAS, The Wharton City Council wishes to authorize the Mayor of the City of Wharton to execute a lease agreement with Hesed House of Wharton. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WHARTON, TEXAS as follows: Section I. That the City Council hereby approves the lease agreement for ten( 10) years with one ( 1) renewal term of five ( 5) years in accordance with the lease agreement between the City of Wharton and Hesed House of Wharton. Section II. That the City Council of the City of Wharton hereby authorizes the Mayor of the City of Wharton to execute the lease agreement with Hesed House of Wharton. Section III. That the City of Wharton and Hesed House of Wharton are hereby bound by the conditions set forth in the agreement. Section IV. That this resolution shall become effective immediately upon its passage. City of Wharton Regular City Council Meeting Page 9 of 33 Passed, Approved, and Adopted this 10`x' of May 2021. CITY OF WHARTON, TEXAS By: TIM BARKER Mayor ATTEST: PAULA FAVORS City Secretary Councilmember Russell Machann seconded the motion. All voted in favor. The tenth item on the agenda was to review and consider the Wharton County Electric Cooperative, Inc.: First Reading: Ordinance: An ordinance authorizing the Mayor of the City of Wharton to execute on behalf of the City of Wharton, Texas, an Electric Power Distribution Franchise with Wharton County Electric Cooperative, Inc., and its successors and assigns, to use the Public Right-of Way of the City for the distribution of electric power; providing for a period of grant; for consideration; for construction and relocation of system facilities; for assignment; and for publication in accordance with the authority granted in this ordinance. City Manager Andres Garza, Jr. stated that during the April 26, 2021 Wharton City Council meeting, the City Council was presented with a draft copy of the proposed franchise agreement between the City of Wharton and the Wharton County Electrical Cooperative WCEC) for electric power distribution. Finance Director Joan Andel stated the City Charter required that franchise agreements ( ordinances) must be read at three separate meetings of theCity Council. After some discussion, Councilmember Russell Machann moved to approve City of Wharton Ordinance No. 2021- XX, which read as follows: ELECTRICAL DISTRIBUTION FRANCHISE AGREEMENT BETWEEN THE CITY OF WHARTON, TEXAS AND WHARTON COUNTY ELECTRIC COOPERATIVE, INC. This Franchise Agreement (" Franchise") has been entered into by and between the City of Wharton, Texas, a municipality incorporated under the laws of the State of Texas ( the City"), and Wharton County Electric Cooperative, Inc., an " electric cooperative" as that term is defined in the Texas Utilities Code ( the" Company"). WHEREAS, Company wishes to use the City streets, alleys, and public ways to distribute electrical power in the City; and, WHEREAS, Texas Utilities Code § 41. 005 provides that " An electric cooperative shall be an electric utility for purposes of Section 182. 025, Tax Code, and Section 33. 008."; and, WHEREAS, Texas Utilities Code § 33. 008( a) provides that, " a municipality may impose on an electric utility, transmission and distribution utility ... or electric cooperative that City of Wharton Regular City Council Meeting Page 10 of 33 provides distribution service within the municipality a reasonable charge as specified in Subsection( b) for the use of a municipal street, alley, or public way to deliver electricity to a retail customer."; and, WHEREAS, the City wishes to grant the Company the right to use its streets, alleys, and public ways to deliver electricity to retail customers for a reasonable charge; and, WHEREAS, the City finds that the charge provided in this Franchise is reasonable and comparable to fees charged to other providers; and, WHEREAS, the City Council of Wharton has passed, approved and adopted the Franchise Authorizing Ordinance No. 2021- XX, which duly authorizing the Mayor to execute on behalf of the City this Franchise with these terms and conditions to Company. NOW THEREFORE, in consideration of the mutual covenants herein contained, the City and Company agree as follows: Section 1. GRANT OF FRANCHISE. That the CITY of WHARTON, Texas ( hereinafter referred to as " CITY"), subject to the terms, conditions and provisions of this Franchise, does hereby grant to WHARTON COUNTY ELECTRIC COOPERATIVE, INC. ( hereinafter referred to as the COMPANY"), its successors and assigns, the non-exclusive right, privilege and franchise to use the Public Rights-of-Way of the CITY as provided herein for the distribution of electric power. This Franchise grants no other rights or privileges to use the Public Rights- of-Way in the CITY except to distribute power in the CITY limits of the CITY, subject to Section 19 herein, and no other use of the Public Rights- of-Way by the COMPANY is granted or implied. Section 2. DEFINITIONS. 2. 1 " CITY" shall mean the CITY of WHARTON, Texas, as constituted on the effective date of this Franchise or as may hereinafter be constituted. 2. 2 " COMPANY" shall mean WHARTON COUNTY ELECTRIC COOPERATIVE, INC., a Texas cooperative corporation, existing under and by virtue of the laws of the State of Texas, and authorized to transact and transacting business in the State of Texas, together with its legal representatives, successors, lessees and assigns, and shall not mean any of its affiliates and subsidiaries who shall have no right, privilege or franchise granted hereunder. 2. 3 " Franchise" shall mean this Agreement and all rights and obligations established herein or as amended. 2.4 " Gross Revenues" shall mean the gross operating revenue for all services provided by COMPANY to it customers within the corporate boundaries of the CITY as accrued on the COMPANY'S books pursuant to the accounting principles established by the Rural Utilities Service of the U. S. Department of Agriculture in 7 CFR 1767 and specifically 1767.26, Accounts 440- 456" as amended. The term " Gross Revenues" shall not include ( i) local, state, or federal taxes collected by COMPANY that have been billed to its City of Wharton Regular City Council Meeting Page 11 of 33 customers and separately stated on customers' bills, ( ii) revenue uncollectible from customers ( i.e., bad debts) with billing addresses in the CITY that was previously included in Gross Revenues, ( iii) revenues received by COMPANY for the use of equipment or facilities by other companies, or ( iv) contributions in aid of construction ( CIAC). " Gross Revenues" shall include franchise fees collected from the COMPANY's customers located within the CITY. 2. 5 " Ordinance" shall mean the Franchise Authorizing Ordinance No. 2021- XX. 2. 6 " Public Rights-of-Way" shall mean streets, avenues, easements ( other than private easements obtained by the COMPANY), rights- of-ways, alleys and highways of the CITY and beneath the surface thereof as they may now or hereafter may exist and as defined herein, but such does not include bridges or other CITY infrastructure such as water, sewer, electric, telecommunication and facilities and any conduit system owned, operated or controlled by CITY in or on the Public Rights- of-Way. 2. 7 " System" shall mean all poles, pole lines, towers, distribution lines, wires, guys, cables, conduits and other desirable instrumentalities and appurtenances necessary for the operation of the COMPANY'S distribution business. Section 3. TERM OF FRANCHISE. Upon the filing with the CITY by the COMPANY of the acceptance required hereunder, this Franchise shall be in full force and effect beginning October 1, 2021 for a ten( 10) year term ending September 30, 2031. Section 4. ACCEPTANCE OF FRANCHISE. The COMPANY shall have ten( 10) days from and after the passage and approval of this Franchise to file its written acceptance thereof with the City Secretary in the form of Exhibit " A" attached hereto. Section 5. FRANCHISE FEE. 5. 1 In consideration for( i) the rights and privileges herein granted, ( ii) the administration of this Franchise by the CITY, (iii) the temporary interference with the use of Public Rights- of- Way, ( iv) rental for the use of the Public Rights-of-Way to distribute electric power and( v) for other costs and obligations undertaken by the CITY herein, the COMPANY agrees to pay to the CITY a franchise fee equal to four ( 4%) percent of the Gross Revenues COMPANY receives for the delivery of electricity to retail customers within the CITY, or the maximum amount allowed by Section 33. 008 of the Utilities Code, its successor law, if any, and as allowed by any other applicable law. 5. 2 Such franchise fee payments described in section 5. 1 begin accruing October h 1, 2011 and shall be calculated and paid to the CITY quarterly on or before the 15` day of January, April, July and October, of each year of this Franchise. Nonetheless, i City of Wharton Regular City Council Meeting Page 12 of 33 no payments are due before thirty ( 30) days from COMPANY's acceptance of this Franchise. Late payments shall accrue interest at six percent( 6. 00%) per annum. Section 6. AUDIT OF COMPANY' S RECORDS AND REPORTS. 6. 1 Books of Account. The COMPANY shall keep complete and accurate books of accounts and records of its business and operations under and in connection with this Franchise. To the extent practicable, all such books of accounts and records shall be made available at the COMPANY' S local office in Wharton, Texas. 6. 2 Access by CITY. The CITY's representative shall have access to all books of accounts and records of the COMPANY to the extent said books of accounts and records relate to and will assist the CITY in ascertaining the correctness of any and all payments or reports to the CITY. As to compliance with the construction standards, the CITY's representative shall have access to the COMPANY'S records relating to use of the Public Rights- of-Way by its System within the CITY, and may examine its representatives with respect thereto. Access shall be given by COMPANY to the CITY's representative at anytime during regular business hours on ten( 10) business days' prior written notice. 6. 3 Annual Report by COMPANY. The COMPANY shall file an annual report with CITY evidencing the kilowatt hours delivered within the CITY to retail customers for the period beginning January 1 and ending December 31 of each calendar year this Agreement is in place on or before March 1St of each following year. 6. 4 Audits. The CITY' s representative may inspect COMPANY'S books of accounts relative to the CITY at any time during regular business hours on ten ( 10) business days' prior written notice and may audit the books from time to time. All records reasonably necessary for such audit shall be made available by COMPANY at the COMPANY'S local office. COMPANY agrees to give its full cooperation in any audit and shall provide complete responses to inquiries within thirty (30) days of a written request. If the results of any audit indicate that COMPANY ( i) paid the correct Franchise Fee, ( ii) overpaid the Franchise Fee and is entitled to a refund or credit, or ( iii) underpaid the franchise fee by three percent ( 3. 00%) or less, then the CITY shall pay the reasonable costs of the audit. If the results of the audit indicate the COMPANY underpaid the Franchise Fee by more than three percent ( 3. 00%), then COMPANY shall pay the reasonable costs of the audit. CITY agrees that any audit shall be performed in good faith, and shall not be requested more frequently than once every two years except an audit may be requested upon annexation of new areas in the City. If the results of the audit indicate that COMPANY underpaid the Franchise Fee by more than three percent( 3. 00%), and in CITY's reasonable judgment, which shall be exercised in good faith, determines that COMPANY is unable to produce contrary evidence to satisfactorily demonstrate to CITY that the results of the audit are not accurate, then COMPANY shall pay interest on the total amount of underpayment at an annualized interest rate of 8%, and interest shall be calculated from the time the original amount is due. Any additional amount due to CITY hereunder shall be paid within thirty (30) days from the date of invoice. Any amount not paid within thirty (30) days from the date of the invoice will cause interest to be payable at an annualized interest rate of 12% on the entire amount from the date of invoice. Notwithstanding the above, if COMPANY'S auditor disagrees with the CITY' s i City of Wharton Regular City Council Meeting Page 13 of 33 determination that the additional amount due exceeds three percent ( 3. 00%), the CITY's auditor and the COMPANY'S auditor shall choose a neutral auditor who shall make a determination which is final and binding on both parties as to whether the three percent 3. 00%) amount was exceeded. 6. 5 Confidentiality. The CITY agrees to hold in strict confidence any non- public information or information marked proprietary or confidential that it learns from the COMPANY to the extent permitted by law. CITY shall not be liable to the COMPANY for the release of any information obtained as a result of an audit where the CITY is required to release that information by law or court order. Section 7. ANNEXATIONS BY THE CITY. This Franchise shall extend to and include any and all territory which is annexed by the CITY during the term of this Franchise. Within sixty ( 60) days from the effective date of any such annexation, the COMPANY shall assure that any and all customers located within such annexed territory be included and shown on its accounting system as being within the CITY. After such sixty( 60) day period, all customers accounts located within such annexed territory shall be subject to the payment provisions specified in Section 5 of this Franchise. Section 8. CONSTRUCTION. 8. 1 Compliance with CITY Ordinances. The COMPANY shall be bound by all current and future CITY ordinances thatovern g the placement, location and construction of facilities in the CITY; and CITY ordinances that assist in the management of facilities placed in, on or over the Public Rights-of-Way to the extent such are necessary to protect the public health, safety, or welfare, and are adopted pursuant to the CITY' S police powers. 8. 2 Relocation of Facilities. In the event relocation is required by CITY of any of the COMPANY'S electric utility wire, cable, or other facility within Public Rights- of-Way for any CITY construction project as determined by the City's representative such relocation shall be completed at the COMPANY's sole cost within 120 days, except in circumstances that require additional time as reasonably determined by the CITY based upon information provided by the COMPANY. In the event relocation is not completed in the time allowed due to action or inaction by the COMPANY, the COMPANY shall defend the CITY against construction delay claims that may be asserted against the CITY due to any delay arising from COMPANY's failure to timely relocate the facilities and pay or reimburse the CITY for amounts reasonably paid pursuant to such claims. 8. 3 CITY Inspection. The CITY retains the right to make reasonable visual, non- invasive inspections of the System and on request of the CITY' s representative from time to time, to require the COMPANY to provide available records or data to demonstrate its current compliance with the terms of this Franchise. Said inspections shall be made during the COMPANY'S normal business hours and shall not cause the COMPANY'S employees to work any hours that will cause the COMPANY to pay overtime wages or salaries to employees necessary to fulfill the CITY's right to said inspection. 8. 4 Temporary Removal of Wires. COMPANY on the reasonable request of any person shall remove or raise or lower its wires within the CITY temporarily 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 benefited party or parties, and COMPANY may require such payment in advance. COMPANY shall be given not less than seventy- two ( 72) hours advance notice to arrange for such temporary wire changes. The clearance of wires above ground or rails within the CITY and also underground work shall conform to the basic standards of the National Electrical Safety Code, National Bureau of Standards, United States Department of Commerce, as promulgated at the time of erection thereof. City of Wharton Regular City Council Meeting May 10, 2021 Page 15 of 33 8. 5 Tree Trimming. The right, license, privilege and permission is hereby granted to COMPANY, its successors and assigns, to trim trees upon and overhanging the streets, alleys, sidewalks and public places of the CITY, as needed and at the COMPANY' S discretion so as to prevent the branches of such trees from coming in contact with the wires or cables of COMPANY, and when so ordered by the CITY, said trimming shall be done under the supervision and direction of the City official to whom said duties have been or maybe delegated. Section 9. INDEMNITY. 9. 1 COMPANY shall indemnify and save harmless CITY and its officers, agents, and employees ( i) from and against all damages, costs, losses or expenses for the repair, replacement, or restoration of CITY's property, equipment materials, structures, and facilities which are damaged, destroyed, or found to be defective as a result of COMPANY's acts or omissions, and ii) from all suits, actions, losses, damages, claims, or liability of any character, type, or description, including without limiting the generality of the foregoing all expenses of litigation, court costs, and attorney' s fees for injury or death to any person, or injury to any property, received or sustained by any person or persons or property, arising out of, or occasioned by, the negligent acts of COMPANY or its agents or employees, in the execution or performance of this Franchise. COMPANY further agrees to defend, at its own expense, and on behalf of CITY, any claim or litigation brought in connection with any such injury, death or damage. COMPANY shall have the right to control the defense and settlement of any such claim. This indemnity provision shall not apply to any liability resulting from the negligence of CITY, its officers, employees, agents, contractors, or subcontractors, as provided in subsection 9. 3 below. 9. 2 Upon commencement of any actions, losses, damages, claims, or liability, proceeding at law or in equity against the CITY relating to or covering any matter covered by this indemnity, to indemnify and hold the CITY harmless, or to pay said final judgment and costs, as the case may be, the CITY shall give the COMPANY reasonable notice of such actions, losses, damages, claims, or liability. The COMPANY shall promptly provide a defense to any such actions, losses, damages, claims, or liability, including any appellate proceedings brought in connection therewith, and pay as aforesaid, any final judgment or judgments that may be rendered against the CITY by reason of such damage suit. Upon failure of the COMPANY to comply with the provisions of this Franchise, after reasonable notice to the COMPANY, CITY shall have the right to defend the same and in addition to being reimbursed for any such judgment that may be rendered against CITY, together with all court costs incurred therein, the COMPANY shall promptly reimburse CITY for attorney' s fees, including those employed by CITY in such case or cases, as well as all expenses incurred by CITY by reason of undertaking the defense of such suit or suits, whether such suit or suits are successfully defended, settled, compromised, or fully adjudicated against CITY. 9. 3 The indemnity provided for in this section shall not apply to any liability determined by a court of competent jurisdiction to have resulted from the negligence or intentional acts or omissions of the CITY, its officers, agents and employees. In the event of joint and concurrent negligence or fault of both the COMPANY and the CITY, responsibility, if any, shall be apportioned comparatively in accordance with the laws of the State of Texas without, however, City of Wharton Regular City Council Meeting May 10, 2021 Page 16 of 33 waiving any governmental immunity available to the CITY under Texas law and without waiving any of the defenses of the parties under Texas law. Further, in the event of joint and concurrent negligence or fault of both the COMPANY and the CITY, responsibility for all costs of defense shall be apportioned between the CITY and COMPANY based upon the comparative fault of each. 9. 4 The provisions of this indemnity are solely for the benefit of CITY and are not intended to create or grant any rights, contractual or otherwise, to any other person or entity. Section 10. TRANSFERS AND ASSIGNMENT. 10. 1 No transfer of this Franchise shall be effective unless it is in writing, in duplicate, signed by the transferor and by the transferee filed with the City Secretary, the transferee pays a franchise transfer fee of Five Hundred Dollars($ 500.00) to the CITY and it is approved by the City Council. Such approval shall not be unreasonably withheld. The fees for subsequent years shall be payable by the transferee under the same conditions as they had been for the transferor. Approval by the City Council of such transfer will extinguish COMPANY's rights and obligations pursuant to this Franchise and delegate them to the transferee. 10. 2 No assignment in law or otherwise shall be effective until the assignee has filed with the CITY an instrument, duly executed, reciting the fact of such assignment, accepting the terms of this Franchise, and agreeing to comply with all of the provisions of this Franchise substantially in the form of Exhibit " A". A mortgage or other pledge of assets in a bona fide lending transaction shall not be considered an assignment for the purposes of this section. Section 11. FORFEITURE AND TERMINATION. 11. 1 In addition to all other rights and powers retained by the CITY under this Franchise or otherwise, the CITY reserves the right to forfeit and terminate this Franchise and all of the COMPANY'S rights and privileges hereunder in the event of a material breach of terms and conditions hereof, subject to reasonable notice and opportunity to cure as provided in Section 11. 2 below. 11. 2 If the COMPANY is in violation of this Franchise and such violation is of a curable nature, the CITY's representative shall notify the COMPANY in writing, setting forth the nature of such violation. Within twenty- one( 2 1) days of receipt of such notice, the COMPANY shall ( i) respond in writing that the violation has been cured, ( ii) provide a written cure plan, subject to review and approval by the CITY's representative, or (iii) provide a written explanation with documentation to support that the alleged violation did not occur. 11. 3 Notwithstanding Section 11. 2, the COMPANY shall be allowed thirty ( 30) days after the CITY's delivery of the written notice described in Section 11. 2 to cure a curable violation. If the nature of such violation is such that it cannot be fully cured within thirty ( 30) days due to circumstances not under the COMPANY' S control, the period of time in which the COMPANY must cure the violation may be extended by the CITY's representative in writing for such additional time reasonably necessary to complete the cure, provided that ( i) the COMPANY has begun City of Wharton Regular City Council Meeting May 10, 2021 Page 17 of 33 promptly to cure, and ( ii) the COMPANY is diligently pursuing its efforts to cure in the CITY's representative' s reasonable judgment. 11. 4 At the COMPANY'S request, the CITY shall afford the COMPANY an opportunity to show that a violation has not occurred, through a hearing before the City Council. Such hearing shall take place on or before the next City Council meeting scheduled within thirty (30) days after the CITY's receipt of the COMPANY request. If the City Council determines that a violation has occurred, the COMPANY shall pay all of the CITY's reasonable expenses associated with the hearing. After the conclusion of the hearing either party may seek any and all remedies, to which it may be entitled at law or in equity. 11. 5 Material breaches of this Franchise specifically include, but are not limited to, failing to comply with the requirements set forth in Sections 5, 6, 8 and 9. 11. 6 The preceding conditions provided in subsection 11. 5 shall not constitute a material breach if the violation occurs without the fault of the COMPANY or occurs as a result of circumstances beyond its control. The COMPANY shall not be excused from performance of any of its obligations under this Franchise by mere economic hardship, nor misfeasance or malfeasance of its directors, managers, officers or employees. 11. 7 A termination shall be declared only by a written decision of the City Council after a public hearing before the City Council, which shall afford the COMPANY full opportunity to be heard and to respond to any notice of grounds of termination, The foregoing sentence, however, shall not be construed as requiring any additional hearing after the COMPANY has had such proceeding pursuant to Section 11. 4 and after the COMPANY'S failure to timely cure any default within a time period which may have been granted by the City Council at the hearing held pursuant to Section 11. 4 above. All of the CITY's notice requirements shall be met by providing written notice to the COMPANY at least thirty ( 30) days before a public hearing concerning the proposed termination of this Franchise, such notice shall specifically state the CITY's alleged grounds for termination. 11. 8 The City Council, after public hearing, and upon finding the existence of grounds to terminate, may either declare this Franchise terminated, excuse the breach upon a showing by the COMPANY of mitigating circumstances or good cause for the existence of such grounds, or grant additional time for the COMPANY to cure its default. 11. 9 Neither the COMPANY'S acceptance of this Franchise, the COMPANY' S appearance before the City Council at any public hearing concerning proposed termination of this Franchise nor any action taken by the City Council as a result of such public hearing, including a declaration of termination or a finding of grounds to terminate, shall be construed to waive or otherwise affect the COMPANY' S right to seek judicial determination of the rights and responsibilities of the parties under this Franchise. Section 12. FORECLOSURE, RECEIVERSHIP, AND BANKRUPTCY. City of Wharton Regular City Council Meeting May 10, 2021 Page 18 of 33 The COMPANY shall notify the CITY within thirty ( 30) days after the appointment of a receiver or trustee to take over and conduct the business of the COMPANY, whether in receivership, reorganization, bankruptcy, or other action or proceeding, whether voluntary or involuntary, such notice to include where applicable the cause number and court involved. Section 13. ENFORCEMENT. The City Attorney or his/her designee shall have the right to enforce all legal rights and obligations under this Franchise without further authorization. The COMPANY shall provide to the City Attorney or his/her designee documents and records reasonably necessary to determine the COMPANY'S compliance with this Franchise, with the exception of those documents that are privileged or confidential by federal or state law or regulation or any documents that would be privileged under the Texas Rules of Civil Procedure. Section 14. NONEXCLUSIVE FRANCHISE. Nothing contained in this Franchise shall be construed as conferring upon the COMPANY any exclusive rights or privileges of any nature whatsoever. Section 15. ENTIRE AGREEMENT. This Franchise contains all of the agreements of the parties with respect to any matter covered or mentioned in this Franchise and no prior or contemporaneous agreements or understandings pertaining to any such matters shall be effective for any purpose. Section 16. SEVERABILITY. If any section, subsection, sentence, clause, phrase, or portion of this Franchise is for any reason held invalid or unconstitutional by any court or administrative agency of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portions thereof. Section 17. NON- WAIVER. Failure of the CITY to declare, or delay in taking any action in connection with, any breach or default immediately upon the occurrence thereof shall not waive such breach or default, but the CITY shall have the right to declare any such breach or default at any time. Failure of the CITY to declare one breach or default does not act as a waiver of the CITY's rights to declare another breach or default. Section 18. GOVERNING LAW; VENUE. This Franchise shall be governed by and construed in accordance with the laws of the State of Texas. The venue and jurisdiction over any dispute related to this Franchise shall be with the Texas State District Court in Wharton County, Texas. Section 19. SERVICE AREA. City of Wharton Regular City Council Meeting May 10, 2021 Page 19 of 33 Notwithstanding any provision or section in this Franchise, the CITY does not, nor does the Franchise authorize the Company to place any facilities of the Company in any Public Rights-of- Ways of the CITY except where the COMPANY is fully lawfully authorized to provide electrical service. IN WITNESS WHEREOF, the parties hereto have executed this Franchise, to be effective as provided herein, and the Company signatory represents by that signature that he or she is fully authorized to execute this Franchise on behalf of the COMPANY. CITY" City of Wharton, Texas By: Tim Barker MAYOR of the CITY of WHARTON, TEXAS Date: COMPANY" Wharton County Electric Cooperative, Inc., a texas ELECTRICAL COOPERATIVE By: Name: Title: Date: Exhibit" A" ACCEPTANCE City of Wharton Regular City Council Meeting May 10, 2021 Page 20 of 33 TO THE HONORABLE MAYOR AND CITY COUNCIL OF THE CITY OF WHARTON: WHARTON COUNTY ELECTRIC COOPERATIVE, INC., on behalf of itself, its successors and assigns, hereby fully accepts CITY OF WHARTON Ordinance No. 2021- XX and this Franchise and expressly agrees to be bound by all of its terms and provisions, and to fully observe and fully perform all limitations and obligations contained in such Ordinance and Franchise. WHARTON COUNTY ELECTRIC COOPERATIVE, INC. further certifies to the CITY that all of the WHARTON COUNTY ELECTRIC COOPERATIVE, INC.'s information filed with the CITY in connection with the issuance of such Ordinance and Franchise is true, correct and complete. WHARTON COUNTY ELECTRIC COOPERATIVE, INC. BY: ITS: ATTEST; Secretary Dated the day of A.D., 2021 THE STATE OF TEXAS § COUNTY OF WHARTON § This instrument was acknowledged before me on 2021, by the of WHARTON COUNTY ELECTRIC COOPERATIVE, INC., A corporation, on behalf of said corporation. THE STATE OF TEXAS COUNTY OF WHARTON 1, PAULA FAVORS, the duly appointed, qualified City Secretary of the CITY of WHARTON, Texas, hereby certify that the above and foregoing Acceptance was received and filed in the office of the City Secretary of the CITY of WHARTON on the day of 2021. City of Wharton Regular City Council Meeting May 10, 2021 Page 21 of 33 Executed under my hand and the official seal of the CITY of WHARTON, Texas, at said CITY, this DAY OF A.D., 2021. PAULA FAVORS, CITY SECRETARY City of Wharton, Texas Councilmember Alice Heard- Roberts seconded the motion. All voted in favor. The eleventh item on the agenda was to review and consider an ordinance amending the City of Wharton Code of Ordinances, Chapter 18, Building and Construction, Article V. Electrical Code; providing that a violation of the Ordinance or any part of the code as adopted hereby shall constitute a penalty upon conviction of a fine. City Manager Andres Garza, Jr. stated the Code Enforcement Department was requesting amendments/additions be made to the City of Wharton Code of Ordinances, Chapter 18, Building and Construction, Article V, Electrical Code. City Manager Garza said they were as follows: 1. Sec. 18- 137- Codes and Rules adopting 2020 National Electrical Code 2. Sec. 18- 257- Changing aluminum conductors not used as grounding electrode conductors. Building Official Ronnie Bollom stated the Electrical Board met on Tuesday, May 4, 2021 and voted to recommend this item to the City Council for approval. After some discussion, Councilmember Terry Freese moved to approve City of Wharton Ordinance No. 2021- 07, which read as follows: CITY OF WHARTON ORDINANCE NO. 2021- 07 AN ORDINANCE AMENDING THE CITY OF WHARTON CODE OF ORDINANCES, CHAPTER 18, BUILDING AND CONSTRUCTION, ARTICLE V. ELECTRICAL CODE; PROVIDING THAT A VIOLATION OF THE ORDINANCE OR ANY PART OF THE CODE AS ADOPTED HEREBY SHALL CONSTITUTE A PENALTY UPON CONVICTION OF A FINE. BE IT ORDAINED by the City Council of the City of Wharton, Texas: WHEREAS, it is the desire of the City of Wharton to adopt, in all respects, the National Electrical Code, 2020 Edition with its latest revisions. City of Wharton Regular City Council Meeting May 10, 2021 Page 22 of 33 DIVISION 1. ADOPTION OF THE TEXAS ELECTRICAL SAFETY AND LICENSING ACT. Sec. 18- 137. Codes and Rules adopted. a) The Administrative Rules of the Texas Department of Licensing and Regulation 16 Texas Administrative Code, Chapter 73 are here by adopted, except insofar as they may conflict with provisions of this article. b) Effective May 21, 2021 at 12: 01 a.m., the City of Wharton adopts the National Electric Code, 2020 Edition with its latest revisions except insofar as it does not conflict with amendments to the City of Wharton Code of Ordinances section 18- 254 through section 18- 261. c) Any person violating any provision of these rules and regulations shall be subject to the penalties as provided in section 1- 5 of this Code of Ordinances. Sec. 18- 257. Aluminum cable, conductors or wire. No aluminum or copper- clad aluminum electric cable, conductors or wire shall be used within the City on any building, structure or apparatus wiring except as noted in this section. Aluminum type conductors may be used in feeders or as service entrance conductors, provided that no such aluminum conductors smaller than number one AWG shall be used. Aluminum conductors, where permitted, shall be installed in conduit and shall only be used in conjunction with compatible lugs, spliced, terminals or connectors. Aluminum conductors shall not be used as grounding electrode conductors. With the exception, aluminum conductors consisting of either two or three insulated wires wrapped around a messenger cable in sizes number six AWG and larger may be used for outside branch circuits and feeders, provided they are installed in accordance with the provisions of the National Electrical Code. Separability If any court of competent jurisdiction rules that any section, subsection, sentence, clause, phrase, or portion of this ordinance is invalid or unconstitutional, any such portion shall be deemed to be a separate, distinct, and independent provision, and any such ruling shall not affect the validity of the remaining portions hereof. Fine and Penalty for Violations Except as otherwise provided in this chapter, any person found guilty of intentionally, knowingly or recklessly violating any provision of this article and upon conviction thereof in the municipal court shall be fined in accordance with the terms of Section 1- 5 of the Code of Ordinances of the City of Wharton, Texas.  City of Wharton Regular City Council Meeting May 10, 2021 Page 23 of 33 Effective Date This Ordinance shall become effective on the 21" day of May 2021 at 12: 01 a.m. Passage and Approval PASSED AND APPROVED by the City Council of the City of Wharton, Texas, on the 101' day of May 2021. CITY OF WHARTON, TEXAS I By: TIM BARKER Mayor ATTEST: PAULA FAVORS City Secretary APPROVED AS TO FORM: PAUL WEBB City Attorney Councilmember Don Mueller seconded the motion. All voted in favor. The twelfth item on the agenda was to review and consider an ordinance declaring a public necessity for the acquisition of fee simple title to below listed properties located in Wharton, Texas, for a public purpose, namely the acquisition, improvement and maintenance ofthe Santa Fe Outfall and authorizing the City Attorney and their subconsultants, to file eminent domain proceedings; ratifying and affirming all prior acts and proceedings done or initiated by attorneys and employees of the City to acquire such property; authorizing all other lawful action necessary or incidental to such acquisition or eminent domain proceedings. City Manager Andres Garza, Jr. stated the City of Wharton had been working with the United States Army Corps of Engineers( USACE) to make necessary repairs to the Santa Fe Outfall. City Manager Garza said working with USACE additional property had been identified for acquisition to complete the repairs and future maintenance for the project. Community Development Director Gwyn Teves as a requirement for acquisition, if the property owners were not willing to negotiate with the City and condemnation City of Wharton Regular City Council Meeting May 10, 2021 Page 24 of 33 was required, the City needed to have a Public Purpose Ordinance in place. After some discussion, Councilmember Clifford Jackson moved to approve City of Wharton Ordinance No. 2021- 08, which read as follows: CITY OF WHARTON ORDINANCE NO. 2021- 08 AN ORDINANCE DECLARING A PUBLIC NECESSITY FOR THE ACQUISTION OF FEE SIMPLE TITLE TO BELOW LISTED PROPERTIES LOCATED IN WHARTON, TEXAS, FOR A PUBLIC PURPOSE, NAMELY THE ACQUISITION, IMPROVEMENT AND MAINTENANCE OF THE SANTA FE OUTFALL AND AUTHORIZING THE CITY ATTORNEY AND THEIR SUBCONSULTANTS, TO FILE EMINENT DOMAIN PROCEEDINGS; RATIFYING AND AFFIRMING ALL PRIOR ACTS AND PROCEEDINGS DONE OR INITIATED BY ATTORNEYS AND EMPLOYEES OF THE CITY TO ACQUIRE SUCH PROPERTY; AUTHORIZING ALL OTHER LAWFUL ACTION NECESSARY OR INCIDENTAL TO SUCH ACQUISITION OR EMINENT DOMAIN PROCEEDINGS. WHEREAS, The City of Wharton, Texas, has determined that the tract(s) or parcel( s) of land, hereinafter described, are required for the Santa Fe Outfall Project; and, WHEREAS, The City may be unable to acquire or purchase fee simple interest in said parcel( s) by negotiation and the City would then be compelled to exercise its power of eminent domain; NOW BE IT ORDAINED BY THE WHARTON CITY COUNCIL that: SECTION I. AUTHORIZATION. In the event that the City staff is unable to acquire the property by negotiation by reason of its inability to agree with the owners thereof as to the value ofthe parcel, or is unable to acquire the parcel for any other reason, the City Manager, through the City Attorney and/ or designated special counsel under the direction of the City Attorney, are hereby authorized and directed to institute and prosecute to conclusion all necessary proceedings to condemn the property. The City Attorney is hereby authorized to retain the services of a consulting law firm as special counsel as may be needed from time to time and to pay for the services rendered from any appropriations as may be made for the purpose. Additionally, the City is authorized to retain the professional services of an appraiser, to value the subject tract( s). SECTION II. PUBLIC NECESSITY. The City Council of Wharton, Wharton County, Texas, declares that a public necessity exists for the City of Wharton to acquire the real property located in Wharton County, Texas, and described in Exhibit " A" attached hereto and made a part hereof. The City Attorney, Paul Webb, and City of Wharton Regular City Council Meeting May 10, 2021 Page 25 of 33 Designated Special Legal Counsel, are hereby directed to finally determine the owner(s) of said real property, coordinate with the Wharton City Manager in an attempt to finally negotiate the purchase or grant of a fee simple interest in and to said properties in Exhibit " A"; and failing such effort at final negotiation, to institute and prosecute to conclusion, an eminent domain condemnation suit against the known and/ or unknown owner(s) of said property and against any and all other person( s) and legal entities who own or claim any interest in said lands; and to acquire the real estate for the Santa Fe Outfall Project. SECTION III. INCORPORATION OF RECITALS. The City hereby finds that the statements set forth in the recitals of this Ordinance are true and correct and incorporates such recitals as findings of fact. SECTION IV. SEVERABILITY. If any provision of this Ordinance or the application hereof to any circumstance shall ever be held to be invalid, the remainder of this Ordinance and the application thereof to other circumstances shall nevertheless be valid, and the governing body hereby declares that this Ordinance would have been enacted without such invalid provision; and that in lieu of each clause or provision of this Ordinance that is deemed invalid, illegal, or unenforceable, there then will be added by the Mayor as necessary, with the approval of the City Manager and City Attorney as to form and legality, and as a part ofthe Ordinance, a substitute or additional clause or provision as similar in terms to such invalid, illegal or unenforceable clause or provision as may be legally possible, valid and enforceable. SECTION V. EFFECTIVE DATE. This Ordinance shall become effective immediately following its passage. SECTION VI. OPEN MEETINGS. The City finds that this Ordinance was discussed, considered, and appropriate action was taken upon it in accordance with the Texas Open Meetings Act requirements of Texas law, set forth in Tex. Gov' t Code Ann. as amended, Title 5, Chapter Sec. 551. 001 et seq. PASSED AND ADOPTED this the 10th day of May 2021. CITY OF WHARTON TIM BARKER Mayor City of Wharton Regular City Council Meeting May 10, 2021 Page 26 of 33 ATTEST: PAULA FAVORS City Secretary APPROVED AS TO FORM: PAUL WEBB City Attorney Exhibit" A" R031737 A20036 ABST.36 TRACT 19A R061558 A20036 ABST.36 TRACT 20A- 4 Councilmember Steve Schneider seconded the motion. All voted in favor. The thirteenth item on the agenda was to review and consider a resolution of the Wharton City Council approving the award of funding for a Transportation Alternatives Set-Aside( TA) Project, namely the City of Wharton Safe and Accessible School Routes Project between the City of Wharton and the Texas Department of Transportation and authorizing the Mayor of the City of Wharton to execute all documents related to said award. City Manager Andres Garza, Jr. stated that on February 8, 2019, the Texas Department of Transportation( TxDOT) announced a statewide Call for Projects under the Transportation Alternatives Set- Aside( TA Set- Aside) and Safe Routes to School ( SRTS). City Manager Garza said the City Council approved the submission of an application in March 2019 and the application was not approved during the 2019/2020 funding cycle but was approved for the Transportation Alternatives Conditional Project list for 2021. Community Development Director Gwyn Teves stated that on April 30, 2021 the City Staff received notificationthat the project had been selected for award and funding. After some discussion, Councilmember Clifford Jackson moved to approve City of Wharton Resolution No. 2021- 50, which read as follows: CITY OF WHARTON RESOLUTION NO. 2021- 50 A RESOLUTION OF THE WHARTON CITY COUNCIL APPROVING THE AWARD OF FUNDING FOR A TRANSPORTATION ALTERNATIVES SET- ASIDE ( TA) PROJECT, City of Wharton Regular City Council Meeting May 10, 2021 Page 27 of 33 NAMELY THE CITY OF WHARTON SAFE AND ACCESSIBLE SCHOOL ROUTES PROJECT BETWEEN THE CITY OF WHARTON AND THE TEXAS DEPARTMENT OF TRANSPORTATION AND AUTHORIZING THE MAYOR OF THE CITY OF WHARTON TO EXECUTE ALL DOCUMENTS RELATED TO SAID AWARD. WHEREAS, The Wharton City Council has determined that it is in the best interest of the citizens of Wharton and the community to construct and improve certain sidewalks and streetscapes in the City of Wharton; and, WHEREAS, The City of Wharton was awarded funding under the Texas Department of Transportation - Transportation Alternatives Set-Aside Program for the City of Wharton Safe and Accessible School Routes Project; and, WHEREAS, The City of Wharton and the Texas Department of Transportation wishes to enter into an Agreement for a Transportation Alternatives Set-Aside( TA) Project for said project; and, WHEREAS, The City of Wharton and the Texas Department of Transportation wishes to be bound by the conditions set forth in said agreement; and, WHEREAS, The Wharton City Council wishes to authorize the Mayor of the City of Wharton to execute all documents related to said award. NOW THEREFORE BE IT RESOL YED BY THE CITY COUNCIL OF THE CITY OF WHARTON, TEXAS THAT: Section I: The Wharton City Council hereby approves the award of funding for a Transportation Alternatives Set-Aside ( TA) Project for the City of Wharton Safe and Accessible School Routes Project. Section II: The Wharton City Council hereby authorizes the Mayor of the City of Wharton to execute all documents related to the award. Section III: This resolution will become effective immediately upon its passage. PASSED, APPROVED, and ADOPTED this 10th day of May 2021. CITY OF WHARTON, TEXAS By: TIM BARKER Mayor ATTEST: City of Wharton Regular City Council Meeting May 10, 2021 Page 28 of 33 PAULA FAVORS City Secretary Councilmember Alice Heard-Roberts seconded the motion. All voted in favor. The fourteenth item on the agenda was to review and consider 2019 Transportation Alternatives Set-Aside Program: A. Resolution: A resolution of the Wharton City Council authorizing the City Staff to issue Requests for Proposals ( RFP) for administrative services and establishing a Consultant Selection Committee and developing evaluation criteria for the selection of administrative services for the 2019 Transportation Alternatives Set- Aside Program administered by the Texas Department of Transportation( TxDOT) for grant management. B. Resolution: A resolution of the Wharton City Council authorizing the City Staff to issue Requests for Qualifications( RFQ) for engineering services and establishing a Consultant Selection Committee and developing evaluation criteria for the selection ofengineering services for the 2019 Transportation Alternatives Set- Aside Program administered by the Texas Department of Transportation( TxDOT). City Manager Andres Garza, Jr. stated that on February 8, 2019, the Texas Department of Transportation ( TxDOT) announced a statewide Call for Projects under the Transportation Alternatives Set- Aside( TA Set- Aside) and Safe Routes to School( SRTS). City Manager said the City Council approved the submission of an application in March 2019 and the application was not approved during the 2019/ 2020 funding cycle but was approved for the Transportation Alternatives Conditional Project list for 2021. He said that on April 30, 2021, the City Staff received notification that the project had been selected for award and funding. Community Development Director Gwyn Teves stated City Staff was requesting that the City Council authorize the City Staff to issue requests for proposals ( RFP) for administrative services and requests for qualifications ( RFQs) for engineering services related to the 2019 Transportation Alternatives Set-Aside program administered by the Texas Department of Transportation TxDOT) and establish consultant selection committees for both administrative services and engineering services for the program. After some discussion, Councilmember Russell Machann moved to approve City of Wharton Resolution No. 2021- 52 and 2021- 51, which read as follows: CITY OF WHARTON RESOLUTION NO. 2021- 52 A RESOLUTION OF THE WHARTON CITY COUNCIL AUTHORIZING THE CITY STAFF TO ISSUE REQUESTS FOR PROPOSALS ( RFP) FOR ADMINISTRATIVE SERVICES AND ESTABLISHING A CONSULTANT SELECTION COMMITTEE AND DEVELOPING EVALUATION CRITERIA FOR THE SELECTION OF ADMINISTRATIVE SERVICES FOR THE 2019 TRANSPORTATION ALTERNATIVES City of Wharton Regular City Council Meeting May 10, 2021 Page 29 of 33 SET- ASIDE PROGRAM ADMINISTERED BY THE TEXAS DEPARTMENT OF TRANSPORTATION( TXDOT) FOR GRANT MANAGEMENT. WHEREAS, The Wharton City Council wishes to authorize City Staff to issue Requests for Proposals( RFP) for Administrative Services for the 2019 Transportation Alternatives Set-Aside Program administered by the Texas Department of Transportation TxDOT); and, WHEREAS, The Wharton City Council wishes to establish a Consultant Selection Committee for the 2019 Transportation Alternatives Set-Aside Program administered by the Texas Department of Transportation ( TxDOT) and provide recommendations to the entire City Council; and, WHEREAS, The Wharton City Council wishes the Consultant Selection Committee to consist of the City Council Finance Committee along with the Finance Director and the Community Development Director; and, WHEREAS, The Wharton City Council wishes for this Committee to exist until a recommendation is forwarded to the entire City Council; and, WHEREAS, The Wharton City Council wishes to establish the criteria of selection ofthe consulting firm as per Attachment A. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WHARTON, TEXAS as follows: Section I. That the Wharton City Council hereby authorizes City Staff to issue Requests for Proposals ( RFP) for Administrative Services for the Transportation Alternatives Set-Aside Program administered by the Texas Department of Transportation TxDOT). Section 11. That the Wharton City Council hereby establishes the City Council Consultant Selection Committee. Section III. That the Wharton City Council Consultant Selection Committee will consist of the City Council Finance Committee along with the Finance Director and the Community Development Director. Section IV. That the criteria as set forth in Attachment A is hereby approved. Section V. That this resolution shall become effective immediately upon its passage. Passed, Approved, and Adopted this 10th day of May 2021. City of Wharton Regular City Council Meeting May 10, 2021 Page 30 of 33 CITY OF WHARTON, TEXAS By: TIM BARKER Mayor ATTEST: PAULA FAVORS City Secretary CITY OF WHARTON RESOLUTION NO. 2021- 51 A RESOLUTION OF THE WHARTON CITY COUNCIL AUTHORIZING THE CITY STAFF TO ISSUE REQUESTS FOR QUALIFICATIONS ( RFQ) FOR ENGINEERING SERVICES AND ESTABLISHING A CONSULTANT SELECTION COMMITTEE AND DEVELOPING EVALUATION CRITERIA FOR THE SELECTION OF ENGINEERING SERVICES FOR THE 2019 TRANSPORTATION ALTERNATIVES SET-ASIDE PROGRAM ADMINISTERED BY THE TEXAS DEPARTMENT OF TRANSPORTATION TXDOT). WHEREAS, The Wharton City Council wishes to authorize City Staff to issue Requests for Qualifications ( RFQ) for Engineering Services for the 2019 Transportation Alternatives Set-Aside Program administered by the Texas Department of Transportation( TxDOT); and, WHEREAS, The Wharton City Council wishes to establish a Consultant Selection Committee for the 2019 Transportation Alternatives Set-Aside Program administered by the Texas Department of Transportation ( TxDOT) and provide recommendations to the entire City Council; and, WHEREAS, The Wharton City Council wishes the Consultant Selection Committee to consist of the City Council Public Works Committee along with the Public Works Director and the Community Development Director; and, WHEREAS, The Wharton City Council wishes for this Committee to exist until a recommendation is forwarded to the entire City Council; and, City of Wharton Regular City Council Meeting May 10, 2021 Page 31 of 33 WHEREAS, The Wharton City Council wishes to establish the criteria ofselection of the consulting firm as per Attachment A. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WHARTON, TEXAS as follows: Section I. That the Wharton City Council hereby authorizes City Staff to issue Requests for Qualifications ( RFQ) for Engineering Services for the 2019 Transportation Alternatives Set- Aside Program administered by the Texas Department of Transportation( TxDOT). Section II. That the Wharton City Council hereby establishes the City Council Consultant Selection Committee. Section III. That the Wharton City Council Consultant Selection Committee will consist of the City Council Public Works Committee along with the Public Works Director and the Community Development Director. Section IV. That the criteria as set forth in Attachment A is hereby approved. Section V. That this resolution shall become effective immediately upon its passage. Passed, Approved, and Adopted this 10th day of May 2021. CITY OF WHARTON, TEXAS By: TIM BARKER Mayor ATTEST: PAULA FAVORS City Secretary Councilmember Clifford Jackson seconded the motion. All voted in favor. The fifteenth item on the agenda was to review and consider the Houston- Galveston Area Council Advisory ( H- GAC) Committee- Regional Flood Management Council. City Manager Andres Garza, Jr. presented a copy of a letter from the Houston- Galveston Area Council regarding the re- nomination of a primary representative and alternate representative to the H- GAC Regional Flood Management Council. City Manager Garza stated the purpose of the Council was to assist and advise elected officials in the decision-making responsibilities regarding to flood management issues. He said the current City representatives on committee were Building Official Ronnie City of Wharton Regular City Council Meeting May 10, 2021 Page 32 of 33 Bollom and Community Development Director Gwyn Teves. After some discussion, Councilmember Terry Freese moved to approve Building Official Ronnie Bollom as the primary representative and Community Development Director Gwyn Teves as the alternate representative to the H-GAC Regional Flood Management Council. Councilmember Russell Machann seconded the motion. All voted in favor. The sixteenth item on the agenda was to review and consider the appointments and resignations to the City of Wharton Boards, Commissions and Committees: A. Beautification Commission. B. Building Standards Commission. C. Plumbing and Mechanical Board. D. Housing Finance Corporation. After some discussion, no action was taken. The seventeenth item on the agenda was to review and consider the City Council Boards, Commissions and Committee Reports: A. Finance Committee meeting April 26, 2021. B. Parks and Recreation Committee meeting held April 26, 2021. After some discussion, no action was taken. Executive Session 1. City Council may adjourn into an Executive Session in accordance with Section 551. 072 and 551. 074 of the Local Government Code, Revised Civil Statutes of Texas. Final action, decision, or vote, if any with regard to any matter considered in Executive Session shall be made in Open Meeting. Discussion: A. To deliberate the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of a public officer or employee: 1. New City Manager. Mayor Tim Barker moved the meeting into Closed Session at 7: 30 p. m. Return to Open Session 1. Action on items discussed in Executive Session: A. Appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of a public officer or employee: 1. New City Manager. City of Wharton Regular City Council Meeting May 10, 2021 Page 33 of 33 Mayor Tim Barker returned the meeting to Open Session at 7: 49 p. m. Councilmember Terry Freese moved to approve City Attorney Paul Webb moving forward with contract negotiations for the hiring of Joseph Pace as the City Manager for the City of Wharton. Councilmember Freese thanked City Manager Andres Garza.,Jr. for his dedicated service and stated that he would be hard to be replaced. Councilmember Freese thanked City Secretary Paula Favors for her work in reviewing and presenting the City Manager candidates for the interview process. Councilmember Don Mueller seconded the motion. All voted in favor. Adjournment. There being no further discussion, Councilmember Don Mueller moved to adjourn. Councilmember Clifford Jackson seconded the motion. All voted in favor. The meeting adjourned at 7: 49 p.m. CITY OF WHARTON, TEXAS B y: TIM BARKER Mayor ATTEST: P U AVORS Ci Secretary 14