City Council Regular Meeting

MINUTES OF CITY OF WHARTON CITY COUNCIL MEETING MAY 24, 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, Clifford Jackson, Alice Heard-Roberts, 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, Community Development Director Gwyn Teves and Public Works Director Anthony Arcidiacono. Visitors present were: Ryan Eurek, Bradley C. Loehr, P.E. with BEFCO Engineering, Inc. and Albert Villegas with the Wharton Journal Spectator. Roll Call and Excused Absences. All Councilmembers were present. Wharton Moment. Mayor Tim Barker called for Wharton Moments. Councilmember Terry Freese thanked the Code Enforcement Department for a job well done. Councilmember Freese stated a Plumber from out of the City informed him that the City of Wharton was much easier to work with than other cities that he has had to work with. Public Comments. The first item on the agenda was to review and consider the City of Wharton Financial Report for April 2021. Finance Director Joan Andel presented the financial report for the month of April 2021. Mrs. Andel stated that the TexPool balance for April was $ 31, 003. 61 with an average monthly yield of. 01%. She said the Prosperity Bank balance for April 2021 was $ 25, 871, 530. 07 with an average yield of .50%. After some discussion, monthly Councilmember Terry Freese moved to approve the City of Wharton Financial Report for the month of April 2021. Councilmember Clifford Jackson seconded the motion. All voted in favor. The second item on the agenda was to review and consider a request from Ms. Valerie Jefferson for approval of a variance for temporary placement of a travel trailer for temporary housing at 212 East Dahlgren Avenue. City Manager Andres Garza, Jr. presented a copy of City of Wharton Regular City Council Meeting Page 2 of 20 a request from Ms. Valerie Jefferson for approval of a variance for temporary placement of a travel trailer for temporary housing at 212 East Dahlgren Avenue. Community Development Director Gwyn Teves stated Ms. Jefferson was requesting a variance allowing her to place and live in a travel trailer at 212 E. Dahlgren Avenue as temporary housing for a period up to one ( 1) year while constructing a new home. Mrs. Teves said that Ms. Jefferson advised that she had theft of materials at the construction site and felt she needed to be on location to keep this from continuing to occur. After some discussion, Councilmember Alice Heard- Roberts moved to approve the request from Ms. Valerie Jefferson for approval of a variance for temporary placement of a travel trailer for temporary housing at 212 East Dahlgren Avenue for up to one year. Councilmember Clifford Jackson seconded the motion. All voted in favor. The third item on the agenda was to review and consider the City of Wharton 2020 Street Improvement Project: A. Request for Change Order No. 3 to the 2020 Street Improvement Project. City Manager Andres Garza, Jr. presented a copy of Change Order No. 3 to the contract for the 2020 Street Improvement Project. City Manager Garza stated the Change Order would extend the contract completion date to further evaluate appropriate completion measures and provide for advantageous weather conditions. Mr. Bradley C. Loehr, P. E. with BEFCO Engineering, Inc. stated the extension to July would be best for better weather. After some discussion, Councilmember Steve Schneider moved to approve the request for Change Order No. 3 to the 2020 Street Improvement Project. Councilmember Clifford Jackson seconded the motion. All voted in favor. The fourth item on the agenda was to review and consider the Wharton County Electric Cooperative, Inc.: Second 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 the City Council and this reading would be the second. After some discussion, Councilmember Clifford Jackson 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. City of Wharton Regular City Council Meeting Page 3 of 20 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 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 City of Wharton Regular City Council Meeting Page 4 of 20 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 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 ( CIAO). " 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 City of Wharton Regular City Council Meeting Page 5 of 21 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 ofthe 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 1, 2011 and shall be calculated and paid to the CITY quarterly on or before the 15th day of January, April, July and October, of each year of this Franchise. Nonetheless, are due before no payments 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 ofthe 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. 3Annual 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 City of Wharton Regular City Council Meeting Page 6 of 21 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 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. City of Wharton Regular Cit Council Meeting Page 7 of 21 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 that govern 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 City of Wharton Regular City Council Meeting Page 8 of 21 Safety Code, National Bureau of Standards, United States Department of Commerce, as promulgated at the time of erection thereof. 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, losses, damages, claims, or liability of any character, type, or actions, 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. City of Wharton Regular City Council Meeting Page 9 of 21 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 ofthe State of Texas without, however, 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 ofthis 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. City of Wharton Regular City Council Meeting Page 10 of 21 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 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 ofthe CITY's notice q requirements shall be met b Yprovidingg written notice to the COMPANY least thirty Y ( 30) at 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 City of Wharton Regular City Council Meeting Page 11 of 21 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. 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 City of Wharton Regular City Council Meeting Page 12 of 21 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. 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" City of Wharton Regular City Council Meeting Page 13 of 21 ACCEPTANCE 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 I, PAULA FAVORS, the duly appointed, qualified City Secretary of the CITY of WHARTON, Texas, herebY certify fY that the above and foregoing gg Acceptance was City of Wharton Regular City Council Meeting Page 14 of 21 received and filed in the office of the City Secretary of the CITY of WHARTON on the day of 2021. 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 Russell Machann seconded the motion. All voted in favor. The fifth item on the agenda was to review and consider the Annual Drinking Water Quality Report Consumer Confidence Report)( CCR). City Manager Andres Garza, Jr. presented a memorandum from Finance Director Joan Andel regarding the dissemination of the Consumer Confidence Report. City Manager Garza stated the City of Wharton was required by the Texas Commission on Environmental Quality to provide its water customers copies of the Annual Drinking Water Quality Report ( Consumer Confidence Report) ( CCR) on a yearly basis to keep customers informed as to the quality of the water supply. He said a public meeting was required and the City Staff was requesting City Council approval to hold the public meeting on Tuesday, June 15, 2021 at 5: 00 p.m. at City Hall to allow an opportunity for citizens to ask questions regarding the report. Mrs. Andel stated the deadline to submit the required documentation to TCEQ was June 30th. After some discussion, Councilmember Russell Machann moved to approve the City of Wharton holding the public meeting on the Annual Drinking Water Quality Report ( Consumer Confidence Report) ( CCR) on Tuesday, June 15, 2021 at 5: 00 p. m. at City Hall. Councilmember Clifford Jackson seconded the motion. All voted in favor. The sixth item on the agenda was to review and consider a resolution of the Wharton City Council rejecting received proposal and authorizing the City Staff to make a second Request for Qualifications for Acquisition Services to the CDBG- DR Buyout Project. City Manager Andres Garza, Jr. stated that on October 10, 2018, the Mayor was notified that the City had been awarded the Community Development Block Grant - Disaster Recovery ( CDBG-DR) funds for Hurricane Harvey under the method of distribution created by HGAC, as follows: Local Buyout/ Acquisition- $ 1, 693, 784.00 Community Development Director Gwyn Teves stated the City contracted GrantWorks, Inc. for administration services which allowed the City to begin acquisition for flood prone areas. Mrs. Teves said that in accordance with state and federal guidelines the City solicited for Acquisition Services in April 2021 and received only one ( 1) response from HDR on May 11, 2021. She said City of Wharton Regular City Council Meeting Page 15 of 21 that after conferring with the General Land Office, it had been determined that the single response was not sufficient to meet the grant requirements. After some discussion, Councilmember Terry Freese moved to approve the City of Wharton Resolution No. 2021- XX, which read as follows: CITY OF WHARTON RESOLUTION NO. 2021- XX A RESOLUTION OF THE WHARTON CITY COUNCIL REJECTING RECEIVED PROPOSAL AND AUTHORIZING THE CITY STAFF TO MAKE A SECOND REQUEST FOR QUALIFICATIONS FOR AQUISITION SERVICES FOR THE CDBG- DR BUYOUT PROJECT. WHEREAS, The City of Wharton is progressing with the CDBG-DR Buyout Funding Project and requires acquisitions. As part of this project acquisition services are required; and, WHEREAS, The Wharton City Council wishes to authorize the City Staff to make a second solicitation for Requests for Qualifications for the procurement of a consultant( s) to provide the acquisition services in accordance with state and federal guidelines; and, WHEREAS, The City of Wharton did receive one ( 1) proposal from HDR on May 11, 2021; and, WHEREAS, The Wharton City Council wishes to reject the proposal due to lack of adequate response; and, WHEREAS, The Wharton City Council wishes this resolution to become effective immediately upon its passage. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WHARTON, TEXAS as follows: Section I. The Wharton City Council has authorized the City Staff to make a second solicitation for Requests for Qualifications for the procurement of a consultant( s) to provide the acquisition services in accordance with state and federal guidelines for the CDBG- DR Buyout Project. Section II. The Wharton City Council wishes to reject the proposal received May 11, 2021 due to lack of adequate response. Section III. That this resolution should become effective immediately upon its passage. Passed, Approved, and Adopted this 20 day of May 2021. CITY OF WHARTON, TEXAS City of Wharton Regular City Council Meeting Page 16 of 21 By: TIM BARKER Mayor ATTEST: PAULA FAVORS City Secretary Councilmember Clifford Jackson seconded the motion. All voted in favor. The seventh item on the agenda was to review and consider the City of Wharton 2020 Housing Summary. Community Development Director Gwyn Teves presented an update the City Council on housing in the City of Wharton. After some discussion, no action was taken. The eighth item on the agenda was to review and consider the update of City of Wharton Grant Programs. City Manager Andres Garza, Jr. presented a copy of a memorandum from Community Development Director, Gwyn Teves, providing an update on the City of Wharton Grant Programs. After some discussion, no action was taken. The ninth item on the agenda was to review and consider the update of City of Wharton on-going Projects. City Manager Andres Garza, Jr. presented a copy of his memorandum dated May 13, 2021 to the City Council providing an update on the City of Wharton current projects as of April 30, 2021, which read as follows: FLOOD REDUCTION (LEVEE) PROJECT The U. S. Army Corp of Engineers ( USACE) Lower Colorado River Phase I Report - City of Wharton Flood Prevention Project and Recommended report is located at the Wharton County Library and the office of the City of Wharton City Secretary for viewing or the report may be viewed on line at http:// www.ciiyofwharton.com/ information- a- notices/ Icrb- feasibili-ty study. The Project Participation Agreement( PPA) has been executed. The City has begun the process to acquire the property necessary to construct the project. The City has hired HDR for Right- of-Way Acquisition and Jones & Carter for City and private company utility relocations. The City through HDR has begun the process of making offers to property owners. DRAINAGE: 1. Stavena Addition Drainage Project. The design and construction plans are complete. The challenge on this project is to find locations to place approximately 35, 000 cubic yards of soil. The ideal disposal site should be close to the project site to reduce the cost of construction. The project is listed as one to be funded with the Texas Water Development Board ( TWDB) Program for partial assistance. City of Wharton Regular City Council Meeting Page 17 of 21 2. Ahldag Ditch Improvement. The project was approved by the City Council. Public Works Department is currently working out the details. The ditch improvements were proposed under the Texas General Land Office ( GLO) Infrastructure Grant Program. The City is soliciting RFQ' s for acquisition services for the necessary right-of-way. 3. On- going Drainage and Maintenance Program. The Public Works Department has continued working on cleaning residential draining ditches that have experienced poor drainage. 4. Pecan Acres ( Mahann, Kinkaid, Delmas) Drainage Project. Installation of the drainage pipes was completed. The City Public Works Department will be regrading ditches to improve the drainage in the area. WATER/ SEWER IMPROVEMENTS: 1. On- going Water and Sewer Maintenance Program. Water leaks and sewer failures are still being seen in the month of April. 2. Water Well and Water Plant Project— CR 222 ( Halford). Halff and Associates the City' s engineering firm on the project are completing the plan and specifications for the project. The plans and specifications have been submitted to the USDA for review and have been approved. The City Council and USDA have approved the construction contracts with a preconstruction date being set in the near future. USDA and the City Staff have begun the funding closeout. A. STREET IMPROVEMENTS 1. FM 1301 Extension and Overpass Project Progress Report. IDC Inc. has submitted to TxDOT Yoakum District Office all required plans for the project. The City Staff continues to coordinate with TxDOT to ensure the project continues to move forward. The City has received the funding for the project under the State Infrastructure Bank SIB) Program. TxDOT and the City completing the final plan design. The City has begun the acquisition of property needed for the project. 2. I-69 Project. The City submitted the comments as approved by the City Council to TxDOT. TxDOT has informed the City that an engineering firm has been selected to design the project from Highway 60 to FM 961. 3. NanYa Exit Ramp Project. TxDOT has been coordinating with NanYa and JM Eagle on the exit design. City of Wharton Regular City Council Meeting Page 18 of 21 4. 2020 City Street Improvement Project. The City has begun the 2020 Street Improvement Project. The City of Wharton Public Works Department has prepared approximately 75% of the streets for the Street Program. The seal coating is expected to be completed by May 2021. After some discussion, no action was taken. The tenth item on the agenda was to review and consider the Appointments and Resignations to the City of Wharton Boards, Commissions and Committees: A. Building Standards Commission. B. Plumbing and Mechanical Board. C. Housing Finance Corporation. Assistant to the City Manager Brandi Jimenez presented a copy of the list of persons serving on the various City Boards, Commissions and Committees as follows: Resignations: Housing Finance Corporation: Gary Nunez. Building Standards Commission: I.O. Coleman. Mayor' s Committee on People with Disabilities: Cindy Kloesel. Appointments: 1. Wharton Regional Airport Board: Jimmy Gardner, Randy Rodriguez and Bill Kingrey terms expire June 30, 2021). 2. Beautification Commission: Steven Roberts, Adraylle Watson, Debbie Folks and Kenneth Dimmick( terms expire June 30, 2021). Marissa MacIntyre and Stephanie Konvicka. 3. Building Standards Commission: Leonard Morales and Mr. Shawn Stockwell( terms expire on June 30, 2021). 4. Electrical Board: Oscar Uribe and Clifford Jackson( terms expire June 30, 2021). 5. Mayor' s Committee on People with Disabilities: Adraylle Watson, Sandy Wilkins, Cheryl Lavergne and Sandy Wilkins (terms expire on June 30, 2021). 6. Municipal Court Judge: Jared Cullar( term expires June 30, 2021). 7. Planning Commission: Michael Quinn, Rob Kolacny and Burnell Neal (terms expire June 30, 2021). 8. Plumbing and Mechanical Board: Tom Faust and Robert Sanchez ( terms expire on June 30, 2021). 9. Housing Finance Corporation: Curtis Edwards and Morris Dean ( terms expire June 30, 2021). After some discussion, Councilmember Terry Freese moved to approve the following resignations and appoint the following positions: Resignations: City of Wharton Regular City Council Meeting Page 19 of 21 Housing Finance Corporation: Gary Nunez. Building Standards Commission: I.O. Coleman. Mayor' s Committee on People with Disabilities: Cindy Kloesel. Appointments: Term Expiring: Wharton Regional Airport Board: Jimmy Gardner June 30, 2023 Randy Rodriguez June 30, 2023 Bill Kingrey June 30, 2023 Beautification Commission: Adraylle Watson June 30, 2023 Debbie Folks Wharton Chamber of Commerce June 30, 2023 Kenneth Dimmick Wharton Downtown Business Association June 30, 2023 Marissa MacIntyre June 30, 2022 Stephanie Konvicka June 30, 2023 Building Standards Commission: Leonard Morales June 30, 2023 Shawn Stockwell June 30, 2023 Electrical Board: Oscar Uribe June 30, 2023 Clifford Jackson June 30, 2023 Mayor' s Committee on People with Disabilities: Adraylle Watson June 30, 2023 Sandy Wilkins June 30, 2023 Cheryl Lavergne June 30, 2023 Sandy Wilkins June 30, 2023 Municipal Court Judge: Jared Cullar June 30, 2023 Planning Commission: Michael Quinn June 30, 2023 Rob Kolacny June 30, 2023 Burnell Neal June 30, 2023 Plumbing and Mechanical Board: Tom Faust June 30, 2023 City of Wharton Regular City Council Meeting Page 20 of 21 Robert Sanchez June 30, 2023 Housing Finance Corporation: Curtis Edwards Position 1 District 1 June 30, 2023 Morris Dean Position 3 District 3 June 30, 2023 Councilmember Russell Machann second the motion. All voted in favor. The eleventh item on the agenda was to review and consider the City Council Boards, Commissions and Committee Reports: A. Wharton Regional Airport Board meeting held April 13, 2021. B. Beautification Commission meeting held May 13, 2021. After some discussion, no action was taken. The twelfth item on the agenda was to review and consider the City Manager' s Reports: A. City Secretary/ Personnel. B. Code Enforcement. C. Community Services Department/ Civic Center. D. Emergency Management. E. E. M. S. Department. F. Facilities Maintenance Department/ Wharton Municipal Pool, G. Fire Department. H. Fire Marshal. I. Legal Department. J. Municipal Court. K. Police Department. L. Public Works Department. M. Water/ Sewer Department. N. Weedy Lots/ Sign Ordinance. O. Wharton Regional Airport. After some discussion, no action was taken. 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: 42 p. m. City of Wharton Regular City Council Meeting Page 21 of 21 CITY OF W RTON, TEXAS By: TIM BARKER Mayor T ST: j R V PAULA FAVORS ity Secretary