1054CITY OF SOUTHLAKE
ORDINANCE NO. 1054
AN ORDINANCE GRANTING TO ONCOR ELECTRIC DELIVERY COMPANY LLC,
ITS SUCCESSORS AND ASSIGNS, AN ELECTRIC POWER FRANCHISE TO USE
THE PRESENT AND FUTURE STREETS, ALLEYS, HIGHWAYS, PUBLIC UTILITY
EASEMENTS, PUBLIC WAYS AND OTHER PUBLIC PROPERTY (PUBLIC RIGHTS -
OF -WAY) OF SOUTHLAKE, TEXAS, PROVIDING FOR THE REPEAL OF ALL PRIOR
FRANCHISE ORDINANCES TO ONCOR ELECTRIC DELIVERY COMPANY LLC, ITS
PREDECESSORS AND ASSIGNS, PROVIDING FOR COMPENSATION THEREFOR,
PROVIDING FOR AN EFFECTIVE DATE AND A TERM OF SAID FRANCHISE,
PROVIDING FOR WRITTEN ACCEPTANCE OF THIS FRANCHISE, AND FINDING
THAT THE MEETING AT WHICH THIS ORDINANCE IS PASSED IS OPEN TO THE
PUBLIC.
BE IT ORDAINED BY THE CITY COUNCIL OF SOUTHLAKE, TEXAS:
SECTION 1. GRANT OF AUTHORITY
A. The City of Southlake, Texas ( "City ") hereby grants to Oncor Electric
Delivery Company LLC, its successors and assigns (herein called "Company"), the
right, privilege and franchise to construct, extend, maintain and operate in, along, under
and across the present and future streets, alleys, highways, public utility easements,
public ways, and other public property ( "Public Rights -of- Way") of Southlake, electric
power lines, with all necessary or desirable appurtenances (including underground
conduits, poles, towers, wires, transmission lines and other structures, and telephone
and communication lines solely for its own use), for the purpose of delivering electricity
to the City, the inhabitants thereof, and persons, firms and corporations beyond the
corporate limits thereof, for the term set out in Section 10, subject to this consent by the
City in accordance with Texas Utilities Code, Section 181.043 and in accordance with
the Public Utility Regulatory Act (PURA) and Texas Utilities Code.
B. The provisions set forth in this ordinance represent the terms and
conditions under which Company shall construct, operate, and maintain its system
facilities within the Public Rights -of -Way of the City. Company, by its acceptance of this
Franchise, agrees that all such lawful regulatory powers and rights as the same may be
from time to time vested in the City shall be in full force and effect and subject to the
exercise thereof by the City at any time. The grant to Company in Section 1 is subject to
the terms and conditions contained herein, PURA, the Texas Constitution, the
Southlake City Charter, including Chapter 10 thereof, and the City's Code of
Ordinances, including the City's Right -of -Way Management Ordinance, all as amended,
and subject to applicable and controlling local, state and federal laws, including the
rules and regulations of any and all agencies thereof, whether presently in force or
whether enacted or adopted at any time in the future. This franchise agreement shall in
no way affect or impair the rights, obligations or remedies of the parties under PURA,
other state or federal laws, rules or regulations, and the Texas Constitution. Nothing
herein shall be deemed a waiver, release or relinquishment of either party's right to
contest, appeal, or file suit with respect to any action or decision of the other party,
including ordinances adopted by the City, that Company believes is in violation of any
federal, state, or local laws, rules or regulations. The City shall provide Company notice
and opportunity to review and comment upon proposed ordinances relating to the Public
Rights -of -Way.
C. This Franchise does not grant to the Company the right, privilege or
authority to engage in any other activities within the City other than as specified in
Section 1.A.
SECTION 2. USE OF PUBLIC RIGHTS -OF -WAY
A. The poles, towers and other structures shall be so erected as not to
unreasonably interfere with traffic over streets, alleys and highways.
B. Company shall, except in cases of (i) emergency conditions or (ii) routine
maintenance and repair of facilities that do not involve any of the following (a) cutting or
breaking of pavement or (b) closure of traffic lane for longer than 24 hours or (c) boring
or (d) excavation greater than 100 cubic feet or (iii) connection of real property to a
utility service on the same side of the Public Rights -of -Way if connection does not
require a pavement cut in the Public Rights -of -Way or (iv) replacement of a single
damaged pole and associated work within a ten (10) foot radius of the damaged pole or
(v) installation of aerial lines on less than 11 existing poles or installation of aerial lines
on less than 11 new poles, provide City reasonable advance notice, and obtain a
permit, (if required by City Ordinance), prior to performing work in the Public Rights -of-
Way, except in no instance shall Company be required to pay fees or bonds related to
its use of the Public Rights -of -Way, despite the City's enactment of any ordinance
providing the contrary. Company shall construct and maintain its facilities in
conformance with the applicable provisions of the National Electric Safety Code or such
comparable standards as may be adopted, and in a good and workmanlike manner.
C. The City retains the right to make visual, non - invasive inspections of the
Company's facilities and upon reasonable notice and request, to require the Company
to make available for inspection records or data to demonstrate its current compliance
with the terms of this Franchise.
D. The location of Company's facilities in the Public Rights -of -Way shall be
subject to approval by the City Manager or the City Manger's designated representative
(the "Manager") prior to construction; provided however, said approval shall not be
unreasonably withheld. This approval will be obtained through the City's permitting
process (if required by City Ordinance). In the event of a conflict between the location
of the proposed facilities of Company and the locations of the facilities of City or other
Public Rights -of -Way users which exist or have been authorized by the City, the
Manager shall resolve the conflict and determine the location of the respective facilities
within the Public Rights -of -Way. The Manager will designate a reasonable alternate
location for Company's facilities if a reasonable alternate location exists. The Company
will use reasonable efforts to work with the City to avoid installing its facilities in park or
City property other than utility easements or street, alley, or highway right -of -way.
Company has the right to request City Council review of this or any actions concerning
Company's use of the Public Rights -of -Way.
E. The Company shall restore at the Company's expense, all work within the
City Rights -of -Way, to a condition equally as good as it was prior to being disturbed by
Company's construction, excavation, repair or removal or to a condition agreed upon by
City and Company. Company shall restore the City's Right -of -Way in accordance with
the City's Right -of -Way Management Ordinance.
F. Company shall cooperate with the City in providing information regarding
the location of current and future overhead and underground wires and poles within
City's Public Rights -of -Way. Reproducible copies of maps showing the location of all
overhead and underground wires and poles within the Public Rights -of -Way shall be
furnished to the City upon reasonable request, if available. The maps shall be provided
in electronic digital format, if available.
SECTION 3: RELOCATION AND ABANDONMENT The City reserves the right to
lay, and permit to be laid, storm, sewer, gas, water, wastewater and other pipe lines,
cables, and conduits, or other improvements or to do and permit to be done any
underground or overhead work that City in its sole discretion determines may be
necessary or proper in, across, along, over, or under Public Rights -of -Way occupied by
Company. The City also reserves the right to change in any manner any curb,
sidewalk, highway, alley, public way, street, utility lines, storm sewers, drainage basins,
drainage ditches, and the like.
Upon request by City, Company shall relocate its facilities at the expense of the City
except as otherwise required by Section 37.101(c) of PURA, which statutory provision
currently states, the governing body of a municipality may require an electric utility to
relocate the utility's facility at the utility's expense to permit the widening or straightening
of a street. City and Company further agree that widening and straightening of a street
includes the addition of any acceleration, deceleration, center or side turn lanes, and
sidewalks provided that the City shall provide Company with at least thirty (30) days
notice and shall specify a new location for such facilities along the Public Rights -of -Way
of the street.
If the City requires the Company to adapt or conform its Facilities, or in any manner to
alter, relocate, or change its Facilities to enable any other corporation or person to use,
or use with greater convenience, said street, alley, highway, or public way, the
Company shall not be bound to make such changes until such other corporation or
person shall have undertaken, with good and sufficient bond, to reimburse the Company
for any costs, loss, or expense which will be caused by, or arises out of such change,
alteration, or relocation of Company's Facilities.
If City abandons any Public Rights -of -Way in which Company has facilities such
abandonment shall be conditioned on Company's right to maintain its use of the former
Public Rights -of -Way and on the obligation of the party to whom the Public Rights -of-
Way is abandoned to reimburse Company for all removal or relocation expenses if
Company agrees to the removal or relocation of its facilities following abandonment of
the Public Rights -of -Way. If the party to whom the Public Rights -of -Way is abandoned
requests the Company to remove or relocate its facilities and Company agrees to such
removal or relocation, such removal or relocation shall be done within a reasonable time
at the expense of the party requesting the removal or relocation. If relocation cannot
practically be made to another Public Rights -of -Way, the expense of any right -of -way
acquisition shall be considered a relocation expense to be reimbursed by the party
requesting the relocation.
SECTION 4. INDEMNIFICATION
A. In consideration of the granting of this Franchise, Company shall, at its sole cost
and expense, indemnify and hold the City, and its past and present officers, agents and
employees (the "Indemnitees ") harmless against any and all liability arising from suits,
actions or claims of injury to any person or persons, or damages to any property
brought or made for or on account of any death, injuries to, or damages received or
sustained by any person or persons or for damage to or loss of property arising out of,
or occasioned by Company or any of its officers, agents, or employees, intentional
and/or negligent acts or omissions in connection with Company's construction,
maintenance and operation of Company's System in the Public Rights -of -Way, including
any court costs, expenses and defenses thereof.
B. This indemnity shall only apply to the extent that the loss, damage or injury is
attributable to the negligence or wrongful act or omission of the Company, its officers,
agents or employees, and does not apply to the extent such loss, damage or injury is
attributable to the negligence or wrongful act or omission of the City, or the City's
officers, agents, or employees or any other person or entity. This provision is not
intended to create a cause of action or liability for the benefit of third parties but is solely
for the benefit of the Company and the City.
C. In the event of joint and concurrent negligence or fault of both the Company and
the City, responsibility and indemnity, if any, shall be apportioned comparatively
between the City and Company in accordance with the laws of the 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.
D. In fulfilling its obligation to defend and indemnify City, Company shall have the
right to select defense counsel, subject to City's approval, which will not be
unreasonably withheld. Company shall retain defense counsel within seven (7)
business days of City's written notice that City is invoking its right to indemnification
under this Franchise. If Company fails to retain Counsel within such time period, City
shall have the right to retain defense counsel on its own behalf, and Company shall be
liable for all reasonable defense costs incurred by City, except as otherwise provided in
Section 4(13) and 4(C).
SECTION 5. LIABILITY INSURANCE: Company shall, at its sole cost and
expense, obtain, maintain, or cause to be maintained, and provide, throughout the term
of this Franchise, insurance in the amounts, types and coverages in accordance with
the following requirements. Such insurance may be in the form of self- insurance to the
extent permitted by applicable law or by obtaining insurance, as follows:
A. Commercial general or excess liability on an occurrence or claims made
form with minimum limits of five million dollars ($5,000,000.00) per
occurrence and ten million dollars ($10,000,000.00) aggregate. This
coverage shall include the following:
(1) Products/completed operations to be maintained for the warranty
period.
(2) Personal and advertising injury.
(3) Contractual liability.
(4) Explosion, collapse, or underground (XCU) hazards.
B. Automobile liability coverage with a minimum policy limit of one million
dollars ($1,000,000.00) combined single limit each accident. This
coverage shall include all owned, hired and non -owned automobiles.
C. Workers compensation and employers liability coverage. Statutory
coverage limits for Coverage A and five hundred thousand dollars
($500,000.00) bodily injury each accident, five hundred thousand dollars
($500,000.00) each employee bodily injury by disease, and five hundred
thousand dollars ($500,000.00) policy limit bodily injury by disease
Coverage B employers' liability is required. Company must provide the
City with a waiver of subrogation for worker's compensation claims.
D. Company must name the City, which includes all authorities,
commissions, divisions and departments, as well as elected and
appointed officials, agents, employees and volunteers, as an additional
insureds under the coverage required herein, except Worker's
Compensation Coverage. The certificate of insurance must state that the
City is an additional insured.
E. Coverages required to be maintained under Sections 5.A, 5.13., and 5.c.
shall include a waiver of subrogation in favor of the City, its officers,
agents and employees.
F. Company will require its contractors and subcontractors to maintain, at
their sole cost and expense, a minimum of three million dollars
($3,000,000) each occurrence or each accident general liability and
automobile liability throughout the course of work performed. Also,
contractors and subcontractors will be required to maintain statutory
workers' compensation benefits in accordance with the regulations of the
State of Texas or state of jurisdiction as applicable. The minimum limits
for employers' liability insurance will be five hundred thousand dollars
($500,000) bodily injury each accident, five hundred thousand dollars
($500,000) each employee bodily injury by disease, five hundred thousand
dollars ($500,000) policy limit bodily injury by disease.
The Company will provide proof of its insurance in accordance with this Franchise within
30 days of the effective date of the Franchise and annually thereafter as applicable
insurance coverages renew. Company will not be required to furnish separate proof
when applying for permits.
SECTION 6. NON - EXCLUSIVITY: This franchise is not exclusive, and nothing
herein contained shall be construed so as to prevent the City from granting other like or
similar rights, privileges and franchises to any other person, firm, or corporation.
SECTION 7. CONSIDERATION In consideration of the grant of said right,
privilege and franchise by the City and as full payment for the right, privilege and
franchise of using and occupying the said Public Rights -of -Way, and in lieu of any and
all occupation taxes, assessments, municipal charges, fees, easement taxes, franchise
taxes, license, permit and inspection fees or charges, street taxes, bonds, street or alley
rentals, and all other taxes, charges, levies, fees and rentals of whatsoever kind and
character which the City may impose or hereafter be authorized or empowered to levy
and collect, excepting only the usual general or special ad valorem taxes which the City
is authorized to levy and impose upon real and personal property, sales and use taxes,
and special assessments for public improvements, Company shall pay to the City the
following:
A. On a quarterly basis, a charge, as authorized by Section 33.008(b) of
PURA, equal to a franchise fee factor of 0.003031 (the "Base Factor"),
multiplied by each kilowatt hour of electricity delivered by Company to
each retail customer whose consuming facility's point of delivery is located
within the City's municipal boundaries. Company has agreed to increase
the franchise fee factor to 0.003183 (the "Increased Factor"); however,
should the PUC at any time in the future disallow Company's recovery
through rates of the higher franchise payments made under the Increased
Factor as compared to the Base Factor, then the franchise fee factor shall
immediately revert to the Base Factor of 0.003031 and all future
payments, irrespective of the time period that is covered by the payment,
will be made using the Base Factor.
1. A final quarterly payment has been made on or before November 1,
2012, for the basis period of June 1, 2012 through August 31, 2012, for
the privilege period of August 1, 2013 through October 31, 2013 in
accordance with the payment schedule in the previous franchise
agreement.
2. Effective February 1, 2013 the quarterly prospective payment schedule
is as follows:
Payment Due Basis Period
Privilege Period
Feb. 1 Sept. 1 — Nov. 30 Nov. 1 — Jan. 31
May 1 Dec. 1 — Feb. 28(29) Feb. 1 —April 30
Aug. 1 Mar. 1 — May 31 May 1 — July 31
Nov. 1 June 1 —Aug. 31 Aug 1. — Oct. 31
3. The first payment hereunder shall be due and payable on or before
February 1, 2013 and will cover basis period of September 1, 2012
through November 30, 2012 for the privilege period of November 1,
2013 through January 31, 2014. If this Franchise is not effective prior
to the first quarterly payment date, Company will pay any payments
due within 30 days of the effective date of this agreement. The final
payment under this Franchise is due on or before November 1, 2022
and covers the basis period of June 1, 2022 through August 28, 2022
for the privilege period of August 1, 2023 through October 31, 2023;
and
4. After the final payment date of November 1, 2022, Company may
continue to make payments in accordance with the above schedule.
The City acknowledges that such continued payments will correspond
to privilege periods that extend beyond the term of this franchise and
that such continued payments will be recognized in any subsequent
franchise agreement as full payment for the relevant periods.
B. A sum equal to four percent (4 %) of gross revenues received by Company
from services identified as DD1 through DD24 in Section 6.1.2
"Discretionary Service Charges," in its Tariff for Retail Delivery Service
(Tariff), effective 1/1/2002, that are for the account and benefit of an end -
use retail electric consumer. Company will, upon request by City, provide
a cross reference to Discretionary Service Charge numbering changes
that are contained in Company's current approved Tariff.
1. The franchise fee amounts based on "Discretionary Service Charges"
shall be calculated on an annual calendar year basis, i.e. from January
through December 31 of each calendar year.
2. The franchise fee amounts that are due based on "Discretionary
Service Charges" shall be paid at least once annually on or before
April 30 each year based on the total "Discretionary Service Charges ",
as set out in Section 6.6, received during the preceding calendar year.
The initial Discretionary Service Charge franchise fee amount will be
paid on or before April 30, 2013 and will be based on the calendar year
January 1 through December 31, 2012. The final Discretionary Service
Charge franchise fee amount will be paid on or before April 30, 2024
and will be based on the calendar months of January 1 through
October 31, 2023.
3. Company may file a tariff or tariff amendment(s) to provide for the
recovery of the franchise fee on Discretionary Service Charges.
4. City agrees (i) to the extent the City acts as regulatory authority, to
adopt and approve that portion of any tariff which provides for 100%
recovery of the franchise fee on Discretionary Service Charges; (ii) in
the event the City intervenes in any regulatory proceeding before a
federal or state agency in which the recovery of the franchise fees on
such Discretionary Service Charges is an issue, the City will take an
affirmative position supporting the 100% recovery of such franchise
fees by Company and; (iii) in the event of an appeal of any such
regulatory proceeding in which the City has intervened, the City will
take an affirmative position in any such appeals in support of the 100%
recovery of such franchise fees by Company.
5. City agrees that it will take no action, nor cause any other person or
entity to take any action, to prohibit the recovery of such franchise fees
by Company.
6. In the event of a regulatory disallowance of the recovery of the
franchise fees on the Discretionary Service Charges, Company will not
be required to continue payment of such franchise fees.
C. With each payment of compensation required by Section 7.A, Company
shall furnish to City a statement that provides the franchise basis period,
the total amount of kilowatt hours of electricity delivered during the
franchise basis period by the Company to retail customers whose
consuming facility's point of delivery is located within the City's municipal
boundaries, and the privilege period covered by the payment. The parties
agree that any information exchanged or provided to the other party is true
and correct to the best of their knowledge.
D. With each payment of compensation required by Section 7.13, Company
shall furnish to the City a statement reflecting the total amount of gross
revenues received by Company within the City's municipal boundaries for
services identified in its Tariff, Section 7.1.2, "Discretionary Service
Charges," Items DD1 through DD24. The parties agree that any
information exchanged or provided to the other party is true and correct to
the best of their knowledge.
E. If Company fails to pay when due any payment provided for in this
Section, Company shall pay such amount plus interest from such due date
until payment is received by City. Interest shall be calculated in
accordance with the interest rate for customer deposits established by the
PUC in accordance with Texas Utilities Code Section 183.003 for the time
period involved.
SECTION 8. MOST FAVORED NATIONS
A. This Section 8 applies only if, after the effective date of this Franchise
Agreement, Company enters into a new municipal franchise agreement or renews an
existing municipal franchise agreement with another municipality that provides for a
different method of calculation of franchise fees for use of the Public Rights -of -Way than
the calculation under PURA, Section 33.008(b), which, if applied to the City, would
result in a greater amount of franchise fees owed the City than under this Franchise
Agreement.
B. In the event of an occurrence as described in Section 8 hereof, City shall
have the option to:
Have Company select, within 30 days of the City's request, any or
all portions of the franchise agreement with the other municipality or
comparable provisions that, at Company's sole discretion, must be
considered in conjunction with the different method of the
calculation of franchise fees included in that other franchise
agreement; and
2. Modify this franchise agreement to include both the different
method of calculation of franchise fee found in the franchise
agreement with the other municipality and all of the other provisions
identified by Company pursuant to Section 8.13.1. In no event shall
City be able to modify the franchise to include the different method
of calculation of franchise fee found in the franchise agreement with
the other municipality without this franchise also being modified to
include all of the other provisions identified by Company pursuant
to Section 8.13.1.
C. City may not exercise the option provided in Section 8 if any of the
provisions that would be included in this franchise are, in Company's sole opinion,
inconsistent with or in any manner contrary to any then - current rule, regulation,
ordinance, law, Code, or Charter of City.
D. In the event of a regulatory disallowance of the increase in franchise fees
paid pursuant to City's exercise of its option under Section 8, then at any time after the
regulatory authority's entry of an order disallowing recovery of the additional franchise
fee expense in rates, Company shall have the right to cancel the modification of the
franchise made pursuant to Section 8, and the terms of the Franchise shall immediately
revert to those in place prior to City's exercise of its option under Section 8.
E. Notwithstanding any other provision of this franchise, should the City
exercise the option provided in Section 8.13, and then adopt any rule, regulation,
ordinance, law, Code, or Charter of City that, in Company's sole opinion, is inconsistent
with or in any manner contrary to the provisions included in this franchise pursuant to
Section 8.13, then Company shall have the right to cancel all of the modifications to this
franchise made pursuant to Section 8 and, effective as of the date of the City's adoption
of the inconsistent provision, the terms of the franchise shall revert to those in place
prior to the City's exercise of its option under Section 8.
F. The provisions of Section 8 apply only to the amount of the franchise fee
to be paid and do not apply to other franchise fee payment provisions, such as the
timing of such payments. The provisions of Section 8 do not apply to differences in the
franchise fee factor that result from the application of the methodology set out in Section
33.008(b) of PURA or a successor methodology.
SECTION 9: RECORDS AND REPORTS:
A. Company shall keep accurate books of account at its principal office for the
purpose of determining the amount due to the City under this Franchise.
B. Pursuant to Section 33.008(e) of the Texas Utilities Code, the City may conduct
an audit or other inquiry in relation to a payment made by Company less than two
(2) years before the commencement of such audit or inquiry. The City may, if it
sees fit, and upon reasonable notice to the Company, have the books and
records of the Company examined by a representative of the City to ascertain the
correctness of the reports agreed to be filed herein.
C. The Company shall make available to the auditor during the Company's regular
business hours and upon reasonable notice, such personnel and records as the
City may, in its reasonable discretion, request in order to complete such audit,
and shall make no charge to the City therefore.
1. If as the result of any City audit, Company is refunded/credited for an
overpayment, or pays the City for an underpayment, of the Franchise Fee,
such refund/credit or payment shall be made pursuant to the payment
terms established in Section 7.
D. The Company shall assist the City in its review by responding to all requests for
information no later than thirty (30) days after receipt of a request.
E. The City agrees to maintain the confidentiality of any non - public information
obtained from Company to the extent allowed by law if Company identifies the
information as non - public prior to providing the information to City. City shall not
be liable to Company for the release of any information the City is required by
law to release. City shall provide notice to Company of any request for release
of non - public information prior to releasing the information so as to allow
Company adequate time to pursue available remedies for protection. If the City
receives a request under the Texas Public Information Act that includes
information Company has identified as Company's proprietary information, City
will notify the Texas Attorney General of the proprietary nature of the
document(s). The City also will provide Company with a copy of this notification,
and thereafter Company is responsible for establishing that an exception under
the Act allows the City to withhold the information.
F. If either party discovers that the Company has either overpaid the City or failed to
pay the entire or correct amount of compensation due the City, the correct
amount shall be mutually determined by the City and Company and shall be paid
by the responsible party within thirty (30) calendar days of such mutual
determination. Such underpayments or overpayments shall include interest as
provided for in Section 7.E. Any overpayment to the City by Company through
error or otherwise, will, at the option of the City, either be refunded within thirty
(30) days of the mutual determination or be offset against the next payment due
from Company. If neither party can mutually agree on either the underpayment
due the City or an overpayment due the Company, both the City and Company
may seek any other rights and remedies provided by law or in equity.
Acceptance by the City or Company of any payment due under this Section shall
not be deemed to be a waiver by the City or Company of any breach of this
Franchise, nor shall the acceptance by the City or Company of any such
payments preclude the City or Company from later establishing that a larger
amount was actually due or from collecting any balance due.
SECTION 10. TERM: This Ordinance shall become effective upon Company's
written acceptance hereof, said written acceptance to be filed by Company with the City
Secretary within sixty (60) days after final passage and approval hereof. The right,
privilege and franchise granted hereby shall expire on October 31, 2023 provided that,
unless written notice is given by either party hereto to the other not less than sixty (60)
days before the expiration of this franchise agreement, it shall be automatically renewed
for an additional period of six (6) months from such expiration date and shall be
automatically renewed thereafter for like periods until canceled by written notice given
not less than sixty (60) days before the expiration of any such renewal period.
SECTION 11. REPEALER CLAUSE: This Ordinance shall supersede any and
all other franchises granted by the City to Company its predecessors and assigns,
provided the parties agree any claim, action or complaint by either party that arose
under or pursuant to any such previous franchise ordinance shall be preserved and
saved from repeal, subject to all applicable statutes of limitations.
SECTION 12. DEFAULT, REMEDIES, TERMINATION:
A. Events of Default. The occurrence, at any time during the term of the Franchise
Agreement, of any one or more of the following events, shall constitute an Event
of Default by Company under this Franchise:
1. The failure of Company to pay the franchise fee on or before the due dates
specified herein.
2. Company's material breach or material violation of any material terms,
covenants, representations or warranties contained herein.
B. Uncured Events of Default.
1. Upon the occurrence of an Event of Default which can be cured by the
immediate payment of money to City or a third party, Company shall have
thirty (30) calendar days from receipt of written notice from City of an
occurrence of such Event of Default to cure same before City may exercise
any of its rights or remedies provided for in Section 12.C.
2. Upon the occurrence of an Event of Default by Company which cannot be
cured by the immediate payment of money to City or a third party, Company
shall have sixty (60) calendar days (or such additional time as may be agreed
to by the City) from receipt of written notice from City of an occurrence of
such Event of Default to cure same before City may exercise any of its rights
or remedies provided for in Section 12.C.
3. If the Event of Default is not cured within the time period allowed for curing
the Event of Default as provided for herein, such Event of Default shall,
without additional notice, become an Uncured Event of Default, which shall
entitle City to exercise the remedies provided for in Section 12.C.
C. Remedies. The City shall notify the Company in writing of an alleged Uncured
Event of Default as described in Section 12.13, which notice shall specify the
alleged failure with reasonable particularity. The Company shall, within thirty (30)
business days after receipt of such notice or such longer period of time as the
City may specify in such notice, either cure such alleged failure or in a written
response to the City either present facts and arguments in refuting or defending
such alleged failure or state that such alleged failure will be cured and set forth
the method and time schedule for accomplishing such cure. In the event that
such cure is not forthcoming, City shall be entitled to exercise any and all of the
following cumulative remedies:
1. The commencement of an action against Company at law for monetary
damages.
2. The commencement of an action in equity seeking injunctive relief or the
specific performance of any of the provisions that as a matter of equity, are
specifically enforceable.
3. The termination of this Franchise.
D. The rights and remedies of City and Company set forth in this Franchise
Agreement shall be in addition to, and not in limitation of, any other rights and
remedies provided by law or in equity. City and Company understand and intend
that such remedies shall be cumulative to the maximum extent permitted by law
and the exercise by City of any one or more of such remedies shall not preclude
the exercise by City, at the same or different times, of any other such remedies
for the same failure to cure. However, notwithstanding this Section or any other
provision of this Franchise, City shall not recover both liquidated damages and
actual damages for the same violation, breach, or noncompliance, either under
this Section or under any other provision of this Franchise.
E. Termination. In accordance with the provisions of Section 12.C, this Franchise
may be terminated upon thirty (30) business day's prior written notice to
Company. City shall notify Company in writing at least fifteen (15) business days
in advance of the City Council meeting at which the question of forfeiture or
termination shall be considered, and Company shall have the right to appear
before the City Council in person or by counsel and raise any objections or
defenses Company may have that are relevant to the proposed forfeiture or
termination. The final decision of the City Council may be appealed to any court
or regulatory authority having jurisdiction. Upon timely appeal by Company of
the City Council's decision terminating the Franchise, the effective date of such
termination shall be either when such appeal is withdrawn or an order upholding
the termination becomes final and unappealable. Until the termination becomes
effective the provisions of this Franchise shall remain in effect for all purposes.
The City recognizes Company's right and obligation to provide service in
accordance with the Certificate of Convenience and Necessity authorized by the
Public Utility Commission of Texas in accordance with the Texas Utilities Code.
F. This Franchise Ordinance shall be construed and governed by the laws of the
State of Texas. City and Company agree that any lawsuit between the City and
the Company concerning this Ordinance will be filed in the state of Texas.
Nothing in this Ordinance shall prohibit the City from filing an action related to
this Ordinance in Tarrant County, Texas.
SECTION 13. NOTICES: Notices, reports or demands required to be given
under this franchise shall be deemed to be given when delivered in writing, personally to
the person designated below, or when five days have elapsed after it is deposited in the
United States Mail with registered or certified mail postage prepaid to the person
designated below, or on the next business day if sent by Express Mail or overnight air
courier addressed to the person designated below:
If to City:
City Manager
City of Southlake
1400 Main Street, Suite 460
Southlake, Texas 76092
If to the Company:
Director, Municipal Relations
Oncor Electric Delivery Company LLC
1616 Woodall Rodgers Fwy, 6 floor
Dallas, Texas 75202 -1234
SECTION 14. SEVERABILITY: If any section, subsection, sentence, clause,
phrase or portion of this ordinance is for any reason held invalid or unconstitutional by
any court or agency of competent jurisdiction, such portion shall be deemed a separate
provision and such holding shall not affect the validity of the remaining portions of the
ordinance.
SECTION 15. ASSIGNMENT: The rights granted by this Franchise Agreement
inure to the benefit of the Company and any parent, subsidiary, affiliate or successor
entity now or hereafter existing. The rights shall not be assignable without the express
written consent, by Ordinance, of the City Council of the City, unless otherwise
superseded by state laws, rules, or regulations or Public Utility Commission of Texas
action, and such consent by City shall not be unreasonably withheld or delayed, except
the Company may assign its rights under this Franchise Agreement to a parent,
subsidiary, affiliate or successor entity without consent, so long as such parent,
subsidiary, affiliate or successor assumes all obligations of Company hereunder, and is
bound to the same extent as Company hereunder. The Company shall give the City
written notice of any such assignment to a parent, subsidiary, affiliate or successor
entity.
PASSED AND APPROVED ON FIRST READING ON THIS 4 DAY OF
DECEMBER, 2012.
`MAYOR f
City of Southlake
ATTEST:
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PASSED AND APPROVED ON SECOND READING ON THIS 15 DAY OF
JANUARY, 2013.
MAYOR /
City of Southlake
ATTEST:
CITY SECRETAF
City of Southlake
APPROVED AS TO FORM AND LEGALITY:
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City Attorney
Date: l '�S"ao�3
ADOPTED: l 3-
EFFECTIVE:
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CITY OF
SOUTHLAKE
CITY OF SOUTHLAKE §
STATE OF TEXAS §
COUNTY OF TARRANT §
CERTIFICATION TO COPY OF OFFICIAL RECORD
I, Alicia Richardson, City Secretary for the City of Southlake, Texas, a municipal
corporation, in the performance of the functions of the Office of City Secretary, hereby
certify that the attached City of Southlake Ordinance 1054 is a full, true, and correct
copy of the document as the same appears of record in the Office of City Secretary.
In witness whereof, I have hereunto set my hand and affixed the official seal of said City
of Southlake, Texas, this 15 day of January, 2013. �` "IS11,,,1„�,
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Sworn to and subscribed before me on the 15 day of January, 2013.
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STATE OF TEXAS
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STATE OF TEXAS §
§
CITY OF SOUTHLAKE §
WHEREAS, there was finally passed and approved on January 15, 2013
Ordinance No. 1054 granting to Oncor Electric Delivery Company LLC, its
successors and assigns, a franchise to furnish and deliver electricity to the general
public in the City of Southlake, Tarrant & Denton County, Texas, forthe transporting,
delivery and distribution of electricity in, out of and through said municipality for all
purposes, which is recorded in the Minutes of the City Council of said City; and
WHEREAS, Section 10 of said ordinance provides as follows:
"SECTION 10
This Ordinance shall become effective upon Company's written acceptance
hereof, said written acceptance to be filed by Company with the City Secretary
within sixty (60) days after final passage and approval hereof.",.-
AND, WHEREAS, it is the desire of Oncor Electric Delivery Company LLC, the
holder of the rights, privileges and grants under the aforesaid franchise ordinance,
to comply with the above - quoted provisions of Section 10 thereof.
NOW, THEREFORE, premises considered, Oncor Electric Delivery Company
LLC, acting by and through its duly authorized officers, and within the time
prescribed by Section 10 quoted above, does hereby agree to and accept the
franchise granted to it by the above - described ordinance, in accordance with its
terms, provisions, conditions and requirements and subject to the stipulations and
agreements therein contained.
WITNESS THE EXECUTION HEREOF, on this the �I day of ,
2013.
Oncor Electric Delivery Company LLC
Sr. Vic ent Meneral Council
STATE OF TEXAS §
COUNTY OF TARRANT & DENTON §
CITY OF SOUTHLAKE §
I, All CA - d- 0J5 a h , City Secretary of the City of Southlake,
Texas, do hereby certify that the attached Acceptance executed by Oncor Electric
Delivery Company LLC is a true and correct copy of a formal acceptance of a
franchise ordinance finally passed and approved by said City on January 15, 2013,
and of record in the Minutes of the City;
OF WHICH, witness my official signature and the seal of said City on this the
3kh day of deb( u avy , 2013.
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City Secretary
City of Southlake . as
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