HomeMy WebLinkAboutApproval of an Ordinance Granting a Franchise Agreement with Cobb EMC (Ordinance # 06-11-66)ORDINANCE NO. 06-11-66
CITY OF MILTON AND COBB ELECTRIC MEMBERSHIP CORPORATION
�.. FRANCHISE AGREEMENT
ORDINANCE GRANTING PERMISSION AND CONSENT to Cobb EMC
(hereafter referred to as "Corporation"), its successors, lessees and assigns, to occupy the
streets and public places of the City of Milton, Georgia (hereafter referred to as "City"),
a municipality and political subdivision of the State of Georgia, in installing,
constructing, maintaining, operating and extending poles, lines, cables, conduits,
conductors, insulators, transformers, appliances, equipment, connectors, and other
apparatus for transmitting and distributing electricity, and for other purposes, for those
customers with the city limits.
SECTION I. Grant of Franchise.
The Mayor and City Council of the City of Milton (hereinafter referred to as the
"City") hereby ordain that the authority, right, permission and consent are hereby granted
to Corporation, its successors, lessees and assigns, for a period of thirty five (35) years
"-' from the date of the Corporation's acceptance hereof, to occupy and use the streets, alleys
and public places of the City within the present and future corporate limits of the City as
from time to time the Corporation may deem proper or necessary for the installation,
construction, maintenance, operation, and extension of poles, towers, lines, wires, cables,
conduits, conductors, insulators, transformers, appliances, equipment, connections, and
other apparatus, exclusive of electric transmission lines with an operating voltage of 115
kv or greater (hereinafter referred collectively as the "Corporation's Facilities") for the
business and purpose of transmitting, conveying, conducting, using, supplying and
distributing electricity for light, heat, power and other purposes for which electric current
may be or become useful or practicable for public or private use, and to re-enter upon
such streets, alleys and public places from time to time as the Corporation may deem, in
it's sole opinion, proper or necessary to perform these functions, and to cut and trim trees
and shrubbery when and where necessary, in the sole judgment of the Corporation, to
ensure safe, reliable and efficient service.
SECTION II. Conditions.
Be it further ordained that the rights, permission and consents herein contained
�..., are granted for the following considerations and upon the following terms and conditions:
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Page I of 6
1. At the end of the calendar quarter beginning on April 1, 2007 and ending on
r' June 31, 2007, the Corporation shall pay into the treasury of the City on or before
the 30`h day of July, and following the end of each calendar quarter thereafter
(October 31 for the period July 1 through September 30; January 31 for the period
October 1 through December 31; and April 30 for the period January 1 through
March 31) a sum of money equal to four percent (4%) of the gross sales of
electric energy to customers served under residential and commercial rates
schedules (as filed with the Georgia Public Service Commission) within the
corporate limits of the City during the preceding calendar quarter, on condition
that in the event the City shall grant to any other entity the right to use and occupy
the City's streets for like purposes, such use and occupancy shall, unless
otherwise agreed by Corporation, be upon the same terms and conditions as those
herein contained, including the payment provisions hereof. Notwithstanding
anything herein to the contrary, Corporation shall not be obligated to pay to the
City the fee provided for herein, or any portion thereof, on the gross sales of
electric energy to customers living within areas that, after the effective date of this
franchise, are annexed to the corporate limits of the City before ninety (90) days
after Corporation receives written notice from the City that the City intends to
annex the territory in which said customers are located or that are considered
customer choice as outlined as customer choice under the Georgia Territorial
Electric Service Act.
2. The amount, if any, of any tax, fee, charge or imposition of any kind required,
demanded or exacted by the City on any account, other than ad valorem taxes on
boo property and license taxes on the sales of home appliances, shall operate to reduce
to that extent the amount due from the percentage of gross sales provided for in
paragraph 1 of Section II.
3. Corporation shall fully protect, indemnify and save harmless the City from
damages to person or property caused by the installation, construction,
maintenance, operation or extension of the Corporation's Facilities, or conditions
of streets, alleys or public places resulting directly therefrom, for which the City
would otherwise be liable.
4. The Corporation shall, in installing, constructing, maintaining, operating and
extending the Corporation's Facilities, submit and be subject to all reasonable
exercises of the police power by the City. Nothing contained herein, however,
shall require the Corporation to surrender or limit its property rights created
hereby, or otherwise obtained, without due process of law, including
compensation, for any purpose at the instance of the City or for any purpose at the
instance of any other entity, private or governmental.
5. In the event that the City or any other entity acting on behalf of the City
requests or demands that the Corporation relocate any of Corporation's Facilities
from their then -current locations within the streets, alleys, and public places of the
city in connection with a public project or improvement, then the Corporation
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338635-1
Page 2 of 6
Now
shall relocate, at its expense, the Corporation's Facilities affected by such project
or improvement.
6. Notwithstanding the foregoing provisions of paragraph 5, the Corporation
shall not be obligated to relocate, at its expense, any of the following:
(i) Corporation's Facilities that are located on easements acquired by
Corporation in any lawful manner;
(ii) Corporation's Facilities that are located on private property at the
time relocation is requested;
(iii) Corporation's Facilities that are relocated in connection with
sidewalk improvements;
(iv) Corporation's Facilities that are relocated in connection with
streetscape projects;
7. The City and the Corporation acknowledge that the City benefits from
economic development within the City. Accordingly, when it is necessary to
relocate any of the Corporation's Facilities within the City, the City and the
Corporation shall work cooperatively to minimize costs, delays, and
inconvenience to both parties. For this purpose, the City shall provide Corporation
the City's five-year capital improvement plan, the City's short-term work
program and the City's annual budget within ninety (90) days after their adoption
by the City.
8. Prior to Corporation commencing relocation of Corporation's Facilities in
connection with a streetscape project undertaken by or on behalf of the City, the
City shall pay to Corporation the Corporation's good faith estimate of the
reasonable cost, plus allocable overhead, to relocate Corporation's Facilities.
Upon completion of the project Corporation shall determine the actual project
cost and promptly refund any overpayment to the City.
SECTION III. Annexation into Corporate Limits.
Be it further ordained that, notwithstanding anything herein to the contrary,
Corporation shall not be obligated to pay to the City the fee provided for herein, or any
portion thereof, on the gross sales of electric energy to customers living within areas that,
after the effective date of this franchise, are annexed to the corporate limits of the City
before ninety (90) days after Corporation receives written notice from the City that the
City intends to annex the territory in which said customers are located.
338635-1
Page 3 of 6
SECTION IV. Renewal of Franchise.
Be it further ordained that, unless written notice of non -renewal is given by one
h" party to the other party at least 120 days prior to the expiration of this franchise
ordinance, this franchise ordinance shall be considered as renewed and binding in all of
its provisions for an additional thirty-five (35) years.
SECTION V. Severability.
Be it further ordained that, in the event that any provision or portion of this
ordinance should for any reason be held void, invalid, or unenforceable for any reason by
any court of competent jurisdiction, such provision or portion shall be deemed a separate,
distinct and independent provision or portion, and such holding shall not affect the
validity of the remaining portions of this ordinance.
SECTION VI. Notice.
Be it further ordained that all notices under this ordinance shall be made in
writing and shall be delivered or sent by (a) first class, registered or certified mail,
postage prepaid, return receipt requested; (b) guaranteed overnight delivery (such as
Federal Express or United Parcel Service Next Day Air); or (c) hand delivery addressed
to the address of the party in question as set forth below or to such other addresses as
bow either party may designate by notice given pursuant to this Section. Notices shall be
effective upon receipt by the notified party.
Notices to Corporation: COBB EMC
Attn:
[Address]
Notices to the City
SECTION VII. Effective Date.
City of Milton
Attn:
[Address]
Be it further ordained that the effective date of this ordinance is January 1, 2007;
provided, however, notwithstanding any provision of this ordinance, the payments levied
herein shall not begin to assess until the latter of the first day of the month following
■"' thirty (30) days after:
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338635-1
Page 4 of 6
(1) the City shall certify, in writing, and deliver to Corporation a map
PPM showing with specificity the location of the City limits;
(2) the Mayor and the City Council shall adopt this ordinance;
Now (3) the Corporation shall has accepted the ordinance in writing; and
(4) the Corporation has provided notice to it's members affected by this
ordinance.
R.
Neither party shall unreasonably delay the performance of the foregoing
conditions.
SECTION VIII. Conflicts.
Be it further ordained that, upon acceptance by Corporation of the terms and
conditions of this ordinance, all laws and ordinances, and all agreements between the
parties, in conflict with this ordinance are repealed to the extent of such conflict.
SECTION IX. Customer Choice.
Be it further ordained that nothing contained in this ordinance shall limit or
restrict the right of customers within the corporate limits of the City to select an electric
supplier as may hereafter be provided by law.
SECTION X. FilinE.
Be it further ordained that the Corporation shall, within ninety (90) days from the
approval of this ordinance, file the Corporation's written acceptance of this franchise
granted in this ordinance with the Clerk of the City, so as to form a contract between the
Corporation and the City.
338635-1
Page 5 of 6
SO ORDAINED by the Mayor and Council of the City of Milton this 30`" day of
NNW November, 2006.
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Approved:
Joe Lockwoo y r
Attest:
Leqp6te R. Marchiafava, City Clerk'
(seal)
Accepted on behalf of Cobb EMC this day of , 2006.
338635-1
Cobb Electrical Membership Corporation
In
Name:
Title:
Page 6 of 6
NEW
1,40.1 I Iffire RION 309
M44H lln.GeorgiaMNN)l
Re: Franchise Ordinance
Dear Mr. Bovos:
MAR 13 2007
We have received and reviewed Ordinance No. 06-11-66, an ordinance/franchise agreement
respecting Cobb EMC. Among other things, the ordinance calls for payment of a 4% fee
based on the gross sales of electric energy to Cobb EMC's residential and commercial
customers within the corporate limits of Milton.
Cobb EMC is currently in litigation with two other municipalities regarding the legality of
ordinances similar to the one adopted by Milton. Because of such litigation, Cobb EMC is
not in a position to sign the above -referenced ordinance/agreement. However, we wish to
avoid litigation with Milton, while preserving our rights pending the outcome of the other
lawsuits, which may resolve issues pertaining to the legality of the Milton Ordinance.
Therefore, without waiving any rights, and expressly reserving all rights, Cobb EMC will
voluntarily pay a 4 % fee to the City of Milton until further notice. Cobb EMC plans to begin
collecting this fee from its customers on April 1, 2007, and will remit payment to Milton
thereafter. As with all other cities to whom Cobb EMC pays franchise fees, Cobb EMC will
make payment to Milton annually, not quarterly.
In voluntarily making such payments, Cobb EMC does not agree to or acquiesce in — and in
fact expressly disputes - - the legality of Milton's franchise ordinance. Also, Cobb EMC
reserves the right to challenge the above-reterenced ordinance and/or discontinue paying the
4 % fee at any time.
Please feel free to give me a call if you have any questions. 1 may be contacted at
(678) 355-2451.
Sincerely, %
W.T. (Chip) Nelson, III
Chief Operating Officer
Cobb EMC
WTN/skc
cc: Wanda Lee
James Orr
Jerring Harfait. Cheroker. C(d,L.
Fuli•ro( (curl Parllding Cnmuier
March 9, 2007
Mr.
SIL
Aaron Bovos
e ,
City Manager
_ '?•' it
Milton City Hall
{
13000 Deerfield Parkway
Suite 107
Milton, GA 30004
Re: Franchise Ordinance
Dear Mr. Bovos:
MAR 13 2007
We have received and reviewed Ordinance No. 06-11-66, an ordinance/franchise agreement
respecting Cobb EMC. Among other things, the ordinance calls for payment of a 4% fee
based on the gross sales of electric energy to Cobb EMC's residential and commercial
customers within the corporate limits of Milton.
Cobb EMC is currently in litigation with two other municipalities regarding the legality of
ordinances similar to the one adopted by Milton. Because of such litigation, Cobb EMC is
not in a position to sign the above -referenced ordinance/agreement. However, we wish to
avoid litigation with Milton, while preserving our rights pending the outcome of the other
lawsuits, which may resolve issues pertaining to the legality of the Milton Ordinance.
Therefore, without waiving any rights, and expressly reserving all rights, Cobb EMC will
voluntarily pay a 4 % fee to the City of Milton until further notice. Cobb EMC plans to begin
collecting this fee from its customers on April 1, 2007, and will remit payment to Milton
thereafter. As with all other cities to whom Cobb EMC pays franchise fees, Cobb EMC will
make payment to Milton annually, not quarterly.
In voluntarily making such payments, Cobb EMC does not agree to or acquiesce in — and in
fact expressly disputes - - the legality of Milton's franchise ordinance. Also, Cobb EMC
reserves the right to challenge the above-reterenced ordinance and/or discontinue paying the
4 % fee at any time.
Please feel free to give me a call if you have any questions. 1 may be contacted at
(678) 355-2451.
Sincerely, %
W.T. (Chip) Nelson, III
Chief Operating Officer
Cobb EMC
WTN/skc
cc: Wanda Lee
James Orr
Jerring Harfait. Cheroker. C(d,L.
Fuli•ro( (curl Parllding Cnmuier