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HomeMy WebLinkAbout19-3694 ord262 ORDINANCE NO. 19-3694 AN ORDINANCE GRANTING TO SOUTHWESTERN PUBLIC SERVICE COMPANY DB/A XCEL ENERGY, ITS SUCCESSORS AND ASSIGNS, THE NON-EXCLUSIVE RIGHT TO USE AND OCCUPY RIGHTS -OF -WAY WITHIN THE CITY OF PLAINVIEW FOR THE CONSTRUCTION AND OPERATION OF AN ELECTRIC TRANSMISSION AND DISTRIBUTION SYSTEM; PRESCRIBING CONDITIONS GOVERNING THE USE OF THE PUBLIC RIGHTS - OF -WAY; PROVIDING FOR COMPENSATION DESIGNATING AN EFFECTIVE DATE AND A TERM OF SAID FRANCHISE, PROVIDING FOR WRITTEN ACCEPTANCE OF THIS FRANCHISE; FINDING THAT THE MEETING AT WHICH THIS ORDINANCE IS PASSED IS OPEN TO THE PUBLIC; AND PROVIDING FOR SEVERABILITY. WHEREAS, Franchisee has asked the City of Plainview, Texas to renew Franchisee's nonexclusive franchise agreement to use and occupy the City's rights -of-way to construct, install, maintain and operate electric transmission and distribution systems consisting of electric power lines and all necessary appurtenances for the purpose of supplying electricity; WHEREAS, the City of Plainview, a home rule municipal corporation, is authorized by state law and the City of Plainview Charter to adopt one or more nonexclusive franchise ordinances which set reasonable terms and compensation required of utility companies that desire to use public streets, alleys, and rights -of -way for profit; WHEREAS, the construction, installation, maintenance and operation of such a system involves the occupation of, and placement of private commercial facilities, in the Public Rights -of -Ways within the City; WHEREAS, the City reviewed the Franchisee's performance and quality of service under the prior nonexclusive franchise agreement as well as financial, technical, and legal qualifications of Franchisee in making good faith negotiations to renew the Franchisee's agreement; WHEREAS, the City relied upon and considered the Franchisee's representations and information presented regarding its financial, technical, and legal qualifications as well as its plans for constructing, operating, and maintaining its electric system; WHEREAS, after reviewing and considering such representations and information presented by the Franchisee, the City determined that, subject to the terms and conditions set forth herein, the grant of a new nonexclusive franchise agreement to the Franchisee is in the best interest of the City of Plainview, Texas; and Ordinance No 19-3694 Page 1 of 18 263 WHEREAS, after review, consideration, and good faith negotiations, the City and Franchisee agreed to abide by the terms and conditions set forth herein. NOW, THEREFORE, the City of Plainview hereby ordains that: SECTION 1. GRANT OF AUTHORITY. There is hereby granted to Southwestern Public Service Company, d/b/a Xcel Energy, a corporation incorporated under the laws of the State of New Mexico, having a permit to do business in the State of Texas, its successors and assigns (herein called "Company" or "Franchisee"), the right, privilege and franchise ("Franchise") to construct, extend, maintain and operate in, along, under and across the Public Rights -of -Way of the City of Plainview, Texas (herein called "City") as it exists as of the effective date of this Franchise and such additional areas as may be included in the corporate limits of the City during the term of this Franchise an Electric Transmission and Distribution System ("System") consisting of 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 for its own use), for the purpose of supplying electricity to the City, the inhabitants thereof , and persons, firms and corporations beyond the corporate limits thereof for the term set out in Section 12. For purposes of this Ordinance, "Public Right(s)-of-Way" shall mean public roads, streets, avenues, lanes, boulevards, alleys, highways, sidewalks, and bridges. This Franchise does not grant to the Company the right, privilege, or authority to engage in any other business within the City other than the transmission and distribution of electric power in the City. SECTION 2. PURPOSE. A. The provisions set forth in this Ordinance represent the terms and conditions under which Company shall construct, operate, and maintain the System within the City. In granting this Franchise, the City does not in any manner surrender or waive its regulatory or other rights and powers under and by virtue of the Constitution and statutes of the State of Texas as the same may be amended, nor any of its rights and powers under or by virtue of the City's Charter or present or future ordinances of the City. B. Not included in this Franchise are any facilities (including any equipment attached in any way to Company's facilities, whether owned by the Company or not) that provide data delivery, cable service, telephone service, and/or any other service or product not required by Company in support of Company's electric operations. To the extent that Company installs or permits to be installed facilities in the Public rights -of -way that are not necessary for the transmission and delivery of electric service, Company will seek a separate franchise from City. The Company shall not be required to obtain a separate franchise in order for the Company to allow "pole attachments", including attachment to a pole, duct, conduit, or other facility owned or controlled by the Company in the Public Right -of -Way. Ordinance No. 19-3694 Page 2 of 19 264 SECTION 3. OPERATION, CONSTRUCTION AND MAINTENANCE OF SYSTEM. A. Company's System shall be so constructed as not to unreasonably interfere with any existing water and wastewater lines, gas lines, storm sewer lines, open drainage areas, cable, fiber optic cable, roadways, sidewalks, alleys, traffic control devices, public signs, or any other publicly owned or publicly franchised facility. Company shall promptly clean-up, repair and restore in compliance with applicable provisions of Plainview's Code of Ordinances, all thoroughfares and other surfaces which it may disturb. B. The Company shall install, maintain, construct, operate and replace its facilities in accordance with all City ordinances and so as to interfere as little as possible with traffic. The placement of new Company facilities in the Public Rights -of -Way shall be subject to the approval of the City Manager or their designee. In determining the location of the Company's facilities within the City, the Company shall minimize interferences with then -existing or planned underground structures of the City or other utility franchisees. In determining the location of a new facility of the City and other utility franchisees and other users of the Public Right -of -Way, the City shall, as determined by the City, minimize the interference with existing facilities of the Company and shall request other utility franchisees or users of the Public Right -of -Way to minimize interference with existing facilities of the Company. C. Company's property and operations within the Public Rights -of -Way shall be subject to such reasonable rules and regulations of the City as may be authorized by applicable law from time to time for the protection of the general public. This Franchise shall in no way affect or impair the rights, obligations or remedies of the parties under the Texas Public Utility Regulatory Act, or other state or federal law. 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 are contrary to any federal, state, or local law or regulation. D. Company shall construct its facilities in conformance with the applicable provisions of the National Electric Safety Code or such comparable standards as may be adopted. E. Company shall cooperate with the City by providing complete information regarding the location of current and future underground conduits, and other appurtenances. Reproducible copies of maps showing the location of all Company facilities within the Public Rights -of -Way shall be furnished to the City upon request. The maps shall be provided in electronic digital format, if available. F. Any and all excavations and obstructions in and upon the Public Rights -of - Way caused by the Company's operations under this Ordinance shall be repaired and removed as quickly as is reasonably possible, under the circumstances. All excavations shall be repaired in a good and workmanlike manner and restored to at least the condition Ordinance No. 19-3694 Page 3 of 19 265 that existed prior to the excavation. The public shall be protected by barriers and lights placed, erected, marked and maintained by the Company in accordance with standards set forth in the current Texas Manual on Uniform Traffic Control Devices, as well as any other applicable local, state and federal requirements. Company warrants that any such restoration work performed in the Public Rights -of -Way shall be in satisfactory condition for a period of two (2) years from the date of completion of such work to the extent that such restoration work has not been disturbed by other users of the Public Rights -of -Way. In the event that the Company fails to repair or restore an excavation site within ten (10) days after receipt of written notice from the City of a deficiency, the City may, at its option, perform the needed repair or restoration, and the Company shall promptly reimburse the City for the cost of such repair or restoration. Any work conducted within the Public Rights -of -Way shall require an approved permit, except in cases of emergency conditions, issued by the City prior to commencement of work. In no instance shall Company be required to pay fees or bonds related to its use of the Public Rights -of -Way. G. In the event the Company fails to restore the Public Rights -of -Way to as good a condition as before the commencement of the work and within a reasonable time, the City may restore or maintain same, after giving the Company ten (10) days' written notice, provided, however, that if the Company is proceeding diligently to restore the property, the time for restoration shall be extended for such time as is necessary for the Company to complete the restoration. If the Company fails to restore the Public Rights -of - Way as required by the City, the Company will receive a bill for the cost of the City repairing same. The Company shall, within thirty (30) days after receiving such bill, pay the actual cost for such service. In the second such instance of a failure, and in each instance of failure thereafter, to restore the Public Right -of -Way appropriately in any calendar year, the City may include a penalty of up to ten percent (10%) of the City's cost of repairs. Any penalty of less than One Hundred Dollars ($100.00) shall be waived as de minimus. H. Company shall have the authority to trim trees or other natural growth overhanging any of its utility system or facilities so as to reasonably prevent branches from coming in contact with the Company's wires, cables, or other equipment; however, the Company shall only engage in trimming trees and other natural growth as necessary to ensure the continued provision of electrical service and to comply with applicable regulatory standards. The Company shall ensure compliance with the North American Electric Reliability Corporation's Transmission Vegetation Management Program, reliability standard FAC-003-1, the safety requirements for pruning, repairing, maintaining, and removing trees endorsed by the American National Standards Institute (specifically the ANSI A300 pruning standards), and state law. Except during an emergency or the recovery immediately after an emergency, Company shall notify the City and its residents at least three days prior to entering onto property to perform any tree trimming activities. The Company further agrees that, within one year of its acceptance of this franchise, and on a yearly basis thereafter, the Company will engage in a campaign to educate its customers within the City through bill inserts or other reasonable method regarding prudent tree selection and planting around power lines. Ordinance No. 19-3694 Page 4 of 19 266 SECTION 4. INDEMNITY. 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 the granting of this Franchise including Company's intentional and/or negligent acts or omissions in connection with Company's construction, maintenance, and operation of Company's System in the Public Right -of -Way or the conduct of its business, which in any way arises out of the granting of this Franchise, directly or indirectly, including any courts costs, expenses, and defenses thereof, when such injury shall have been caused by the negligent act or omissions, or misconduct, of Company or any of its officers, agents, employees, contractors, or subcontractors. B. This indemnity 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 agents, representatives or employees or any other person or entity not associated with the Company. By entering into this Franchise Ordinance, City does not consent to suit, waive any governmental immunity available to the City under Texas law, or waive any of the defenses of the parties under Texas law. 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 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, Company will be responsible for its defense costs and City will be responsible for its defense costs. D. In the event any action or proceeding shall be brought against the indemnitees by reason of any matter for which the indemnitees are indemnified hereunder, Company shall, upon notice from any of the indemnitees, at Company's sole cost and expense, resist and defend the same with legal counsel selected by Company; provided, however, that Company shall not admit liability or waive immunity in any such matter on behalf of the indemnitees without their written consent and provided further that indemnitees shall not admit liability for, nor enter into any compromise or settlement of, any claim for which they are indemnified hereunder, without the prior written consent of Company. Company's obligation to defend shall apply regardless of whether City is solely or concurrently negligent provided that indemnitees may be held responsible for the cost of such defense paid for by the Company. The indemnitees shall give Company prompt notice of the making of any claim or the commencement of any action, suit or other Ordinance No. 19-3694 Page 5 of 19 267 proceeding covered by the provisions of this Section 13. Nothing herein shall be deemed to prevent the indemnitees at their election and at their own expense from cooperating with Company and participating in the defense of any litigation by their own counsel. If Company fails to retain defense counsel within seven (7) business days after receipt of Indemnitee's written notice that Indemnitee is invoking its right to indemnification under this Franchise, indemnitees shall have the right to retain defense counsel on their own behalf, and Company shall be liable for all defense costs incurred by indemnitees. SECTION 5. LIABILITY INSURANCE. A. Company shall, at its sole cost and expense, obtain, maintain, and provide, throughout the term of this Franchise, insurance in accordance with City ordinances; provided, however, that Company may instead meet the insurance requirements of City ordinances either by a Company approved formal" plan of self-insurance maintained in accordance with sound accounting and risk -management practices or obtaining coverage from an insurance company authorized to issue insurance in this state, as follows: (1) Commercial general or excess liability on an occurrence or claims made within minimum limits of five million dollars $5,000,000.00) per occurrence and ten million dollars ($10,000,000.00) aggregate. To the extent that coverage is maintained on a claim made, the minimum limits are ten million dollars ($10,000,000.00) per occurrence and twenty million dollars ($20,000,000.00) aggregate. This coverage shall include the following: (a) Products/completed operations to be maintained for two (2) years. (b) Personal and advertising injury. (c) Contractual liability. (d) Explosion, collapse, or underground hazards. (2) Automobile liability coverage with a minimum policy limit of one milliondollars ($1,000,000.00) combined single limit. This coverage shall include all owned, hired and non -owned automobiles. (3) Workers' compensation and employers' liability coverage. Statutory coverage limits for Coverage A and five hundred thousand dollars ($500,000.00). Coverage B employers' liability is required. Company must provide the City with a waiver of subrogation for worker's compensation claims. (4) Except for workers' compensation insurance, Company must name the City, which includes all authorities, councils, commissions, divisions, and departments, as well as elected and appointed officials, agents, and volunteers, as an additional insured under the coverage required herein. The certificate of insurance must state that Ordinance No. 19-3694 Page 6 of 19 the City is an additional insured. (5) The Company shall require its contractors and subcontractors to be adequately insured commensurate with the work to be performed by the contractor and subcontractor and the risks involved therein. The amount of public liability and property damage insurance required herein shall in no event be less than the following amounts: (a) One hundred thousand dollars ($100,000) property damage per occurrence; (b) Three hundred thousand dollars ($300,000) bodily injury per occurrence; (c) Ten thousand dollars ($10,000) for any single occurrence for injury to or destruction of property. B. Company agrees that with respect to the above required insurance, all insurance contracts and certificate(s) of insurance will contain and state, in writing, the following required provisions: (1) Name the City of Plainview and its officers, employees, and elected representatives as additional insureds, as provided in Subsection A(4) above. (2) State that coverage shall not be canceled, nonrenewed, or materially changed except after thirty (30) days written notice by certificate mail to: City of Plainview City Manager 901 Broadway Plainview, Texas 79072 (3) Waive subrogation against the City of Plainview, its officers and employees, for bodily injury (including death), property damage, or any other loss. (4) Provide that the Company's insurance is primary insurance with respect to the City of Plainview, its officers, employees, and elected representatives. C. The Company will provide proof of insurance in accordance with this Franchise within thirty (30) days after the effective date of the Franchise and by February 1st of each year thereafter. If the Company elects to self -insure, a written record describing the parameters of self-insurance by the Company shall be provided to the City annually and upon substantial change in the nature of its coverage under this section. Company will not be required to furnish separate proof when applying for permits. However, all Company Ordinance No. 19-3694 Page 7 of 19 269 contractors and subcontractors will be required to provide proof of insurance when applying for permits under this Franchise unless said contractors or subcontractors have previously provided such insurance within the last twelve months of the permit application. SECTION 6. NON-EXCLUSIVE FRANCHISE. 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. COMPENSATION TO THE CITY. A. In consideration of the right, privilege, and franchise of using and occupying the Public Rights -of -Way, the Company shall pay to the City a franchise fee in the amount of five percent (5%) of the Company's Gross Receipts, received from SPS customers, for electricity delivered by SPS within the City until the Company adopts customer choice. After the Company adopts customer choice, the parties agree that the Company will pay a franchise fee calculated on the number of kilowatt hours delivered within the City, as contemplated by § 33.008 and § 39.402(b) of the Texas Utilities Code, to be negotiated by the parties at that time. Unless otherwise ordered by the Public Utility Commission of Texas, or otherwise agreed to by the City and SPS, SPS will continue its prior practice for recovering municipal franchise fee payments to the City. Specifically, the current practice within the City is that franchise fees paid to the City in excess of the percentage authorized in the Company's tariff to be included in base rates are surcharged in the City. These payments shall be exclusive of and in addition to all other general municipal taxes of whatever nature, including, but not limited to, ad valorem taxes, sales and use taxes, and special taxes and assessments for public improvements. During the periods for which payments are made for this Franchise to use the Public Rights -of -Way of the City, the payments shall be (insofar as the City has legal power so as to provide and agree) in lieu of and shall be accepted as payment for all of the Company's obligations to pay municipal 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 those identified above as exclusive of and in addition to the quarterly payments. B. Such payments shall be made on a quarterly basis, on or before the forty- fifth (45`h) day following the end of each calendar quarter. Payments under this Franchise shall commence upon execution hereof, so that there will not be any period after the expiration of the preceding franchise in which the City does not receive compensation from the Company for its occupancy of the Public Right -of Way. C. For purposes of this section, "Gross Receipts for electricity delivered" shall mean the total monies received by Company from the sale of electric energy to its retail Ordinance No. 19-3694 Page 8 of 19 270 customers within the corporate limits of the City. Gross Receipts shall include, without limitation, all amounts charged by Company or other entities utilizing Company's delivery system, to Company's customers for generation, transmission, and distribution services, regardless of the source of such services, and specifically including receipts from the following: (1) All sales of electricity by Company, net of customer credits, to residential, commercial, governmental, educational, and industrial customers, without exception, within the corporate limits of the City. (2) For all service classifications, the charges addressed in subsection (1) above shall include Service Availability Charges, Energy Charges, Demand Charges, and Fuel Charges and Surcharges. (3) All revenues received by the Company from customers within the City related to charges for fuel, or fuel cost recovery charges, based upon the consumption of the customer. (4) Transmission and distribution when sold separately from kWh to any person or entity located within the City. (5) All payments received by the Company based on any and all contractual provisions of transmission or distribution services. (6) Company net miscellaneous revenues limited to (a) returned check charges; (b) reconnection charges after a disconnection for non- payment; (c) restoring service after a tampering or unsafe situation disconnection; and (d) charges related to meter tampering. D. With each payment of compensation required by Section 7, Company shall furnish to the City a statement, executed by an authorized officer of Company or designee, providing the Gross Receipts, itemized as set forth in Section 7(C), or, after the Company adopts customer choice, the kilowatt hours delivered within the City and the amount of payment for the period covered by the payment. E. If either party discovers that Company has failed to pay the entire or correct amount of compensation due, the correct amount shall be determined by mutual agreement between the City and Company, and the City shall be paid by Company within thirty (30) calendar days of such determination. Any overpayment to the City through error or otherwise will, at the sole option of the City, either be refunded or offset against the next payment due from Company. Acceptance by the City of any payment due under this Section shall not be deemed to be a waiver by the City of any breach of this Franchise, nor shall the acceptance by the City of any such payments preclude the City from later establishing that a larger amount was actually due or from collecting any balance due to the City. Ordinance No. 19-3694 Page 9 of 19 271 F. Interest on late payment shall be calculated in accordance with § 183.003, Texas Utilities Code, for over -billing, as amended from time to time. G. No taxes, fees, or other payments by Company to the City, including, but not limited to, ad valorem taxes, shall reduce the franchise fees payable to City hereunder, except as agreed to by the City in Section 7. SECTION 8. ACCOUNTING MATTERS. A. Company shall use the system of accounts and the forms of books, accounts, records, and memoranda prescribed by the Public Utility Commission of Texas, or as mutually agreed to by the City and the Company, except that the City may require the keeping of certain additional records or accounts not inconsistent therewith. Should the Public Utility Commission of Texas cease to exist, the City retains the right to require the Company to maintain a system of accounts and forms of books, accounts, records, and memoranda prescribed either by the Federal Energy Regulatory Commission or the National Association of Regulatory Utility Commission or the successor of either of these organizations as mutually agreed to by the City and the Company. B. The City may, if it sees fit, upon reasonable notice to the Company, have the books and records of the Company examined by representatives of the City to ascertain the correctness of the reports agreed to be filed herein, as well as the Company's compliance with all other provisions of this Franchise. C. The Company shall make available to the City's representative 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 any compliance review and shall make no charge to the City therefore. The Company shall assist the City in its review by providing all requested information no later than thirty-five (35) days after receipt of a request. D. With respect to any review for compliance with Section 7: (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 terms established in Section 7(E). (2) If as a result of a subsequent franchise fee audit initiated within two years of a prior audit which resulted in Company making a payment to the City due to an underpayment of the franchise fee of more than five percent (5%), and Company is required to make another payment to the City due to a subsequent underpayment of the franchise fee of more than five percent (5%), then City may immediately treat subsequent underpayment as an Uncured Event of Ordinance No. 19-3694 Page 10 of 19 272 Default and exercise the remedies provided for in Section 13(C). (3) If the results of any audit indicate the Company underpaid the franchise fee by more than five percent (5%), then the Company shall pay the reasonable costs of the audit. City agrees that any audit shall be performed in good faith. (4) If the results of the audit indicate that the Company underpaid the franchise fee by more than five percent (5%), and Company is unable to produce contrary evidence which, in City's reasonable judgment, is satisfactory to demonstrate to City that the results of the audit are not accurate, then notwithstanding subsection (1) above, interest on the total amount of underpayment shall be paid at the interest rate described in Section 7(F), plus two percent (2%), and interest shall be calculated from the time the original amount was due. (5) Any additional amount due to City hereunder with respect to a review for compliance with Section 7 shall be paid within thirty (30) days from the date of the compliance invoice. Notwithstanding subsection (1) above, any amount not paid within thirty (30) days from the date of the invoice will cause interest to be payable at the interest rate described in Section 7(F), plus two percent (2%) on the entire amount from the date of the compliance invoice. E. With respect to all other reviews conducted by City representatives that result in any findings of non-compliance with this Franchise, Section 13 shall govern the process of notification, opportunity to cure, and any assessment of liquidated damages. F. The City agrees to maintain the confidentiality of any non-public information obtained from Company to the extent allowed by law. Company shall clearly identify information that it believes to be of a proprietary or confidential nature at the time the information is provided to City. City shall not be liable to Company for the release of any information the City is required to release by law, subpoena, or court order. City shall provide notice to Company of any request for release of any information previously designated by Company as proprietary or 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 previously designated by Company as proprietary or confidential information, City will request an opinion from the Texas Attorney General as to the confidential or 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 Texas Public Information Act allows the City to withhold the information. Nothing herein shall be construed so as to prevent City from sharing Company information with City's employees, contractors, or auditors as necessary to exercise City's rights under this agreement, with appropriate promises from such persons Ordinance No. 19-3694 Page 11 of 19 273 to comply with this subsection. SECTION 9. RIGHT OF RENEGOTIATION. A. Should either Company or the City have cause to believe that a change in circumstances relating to the terms of this Franchise may exist, it may request that the other party provide it with a reasonable amount of information to assist in determining whether a change in circumstances has taken place. B. Should either party hereto determine that based on a change in circumstances, it is in the best interest to renegotiate all or some of the provisions of this Franchise, then the other party agrees to enter into good faith negotiations. Said negotiations shall involve reasonable, diligent, and timely discussions about the pertinent issues and a resolute attempt to settle those issues. The obligation to engage in such negotiations does not obligate either party to agree to an amendment of the Franchise as a result of such negotiations. A failure to agree does not show a lack of good faith. If, as a result of renegotiation, the City and Company agree to a change in a provision of this Franchise, the change shall become effective upon passage of an ordinance by the City in accordance with the City Charter and acceptance of the amendment by Company. SECTION 10. WORK BY OTHERS. A. 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 and to do and permit to be done any underground or overhead work that may be necessary or proper in, across , along, over, or under a 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, etc. B. The Company shall relocate its facilities at its expense to permit the widening, straightening, or any change whatsoever of a street, including, but not limited to, the addition of any acceleration, deceleration, center or side turn lanes, sidewalks, alleys, and like property, 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. Upon receiving notice from the City, Company agrees that such relocation shall be within a reasonable time so as to not cause any unreasonable delay in construction of such streets or alleys by the City. When Company is required by City to remove or relocate its poles, towers, conduits, cables, and other facilities to accommodate construction of streets and alleys by City, and Company is eligible under Federal, State, County, City or other local agencies or programs for reimbursement of costs and expenses incurred by Company as a result of such removal or relocation and such reimbursement is required to be handled through City, Company costs and expenses shall be included in any application by City for reimbursement, if Company submits its cost and expense documentation to City prior to the filing of the application. City shall provide reasonable notice to Company of the deadline for Company to submit documentation of the costs and expenses of such relocation to City. Ordinance No. 19-3694 Page 12 of 19 It. The City will review ie response. If City is not ity eives a request for or itself initiates the abandonment of any rthcoming, City shall be ay vhich Company has facilities, Company shall be notified of such lies: comment about the impact of the proposed abandonment. Any �e conditioned on the grant of a utility easement for Company's st Company at law for the former Public Rights -of -Way. If the party to whom the Public ;d requests the Company to remove or relocate its facilities and -emoval or relocation, such removal or relocation shall be done seeking injunctive relief t the expense of the party requesting the removal or relocation. rovisions that as a matter -equires the Company to adapt or conform its facilities, or in any )r change its property to enable any other entity that is not a part lance with Section 13(E). dated corporate structure of the Company to use, or use with Public Right -of -Way, the Company shall not be bound to make of City and Company set her entity shall have undertaken, with good and sufficient bond, n of, any other rights and for any costs, loss, or expense which will be caused by, or arises eeding before the Public ion, or relocation of Company's property or facilities. `ommission, or respective nderstand and intend that ER AND ASSIGNMENT. -rmitted by law and the preclude the exercise by )y this Franchise inure to the benefit of Company and any parent, ,r the same failure to cure. ow or hereafter existing. Upon assignment to such parent, his Franchise Agreement, te, h entity assumes all obligations of Company hereunder and is es for the same violation, !xte is Company hereunder. Company shall give City written notice iy other provision of this ^• assignment to a parent, subsidiary or affiliate. In the event :nchise to someone other than a parent, subsidiary or affiliate I give City notice concurrently with notice provided to the Public s of Section 13(C), this sale or transfer of assets. Any such assignment shall require that s days prior written notice obligations of Company and is bound to the same extent as seventy-two (72) hours in ithin the first sixty (60) days after assignment to someone other eiture or termination shall r affiliate, City shall identify a failure to comply with a material -fore the City Council in -,, City shall have the right to treat such failure to comply as an npany may have that are t and immediately implement the provisions of Section 13, of the City Council shall nate the Franchise. having jurisdiction. Until rise shall remain in effect reement shall be in full force and effect for a period of ten (10) e instances upon the strict � effective date of this nonexclusive franchise agreement. If his Franchise shall not be finance, by the filing of its written acceptance, this Ordinance ch term or provision, and ;ust 1, 2019 and end July 31, 2029. r relinquishment shall be linquishment is in writing Page 15 of 19 Page 13 of 19 277 SECTION 14. PUBLIC PURPOSE. All of the provisions contained in this Ordinance are hereby declared to be for a public purpose, and are in the interests of the health, safety, and welfare of the general public. SECTION 15. FUTURE CONTINGENCIES. Notwithstanding anything contained in this Ordinance to the contrary, in the event that (a) this Ordinance or any part hereof, or (b) any procedure set forth in this Ordinance, or (c) any compensation due the City under this Ordinance becomes, or is declared or determined by judicial, administrative, or legislative authority exercising its jurisdiction to be excessive, unrecoverable, unenforceable, void, unlawful or otherwise inapplicable, in whole or in part, the Company and the City agree that they will meet and negotiate in good faith to obtain a new Ordinance that is in compliance with the authority's decision or enactment; and unless explicitly prohibited, the new Ordinance shall provide the City with a level of compensation comparable to that set forth in this Ordinance so long as such compensation is recoverable by the Company in a mutually agreeable manner permitted by law for the unexpired portion of the term of this Ordinance. SECTION 16. SEVERABILITY. If any provision, section, subsection, sentence, clause or phrase of this Ordinance is for any reason held to be unconstitutional, void or invalid (or for any reason z unenforceable), the validity of the remaining portions of this Ordinance shall not be affected thereby, it being the intent of the parties in adopting this Franchise Ordinance that no provision hereof shall be inoperative or fail by reason of any unconstitutionality or invalidity of any other portion, provision, or regulation, and to that end, all provisions of this Ordinance are declared to be severable. SECTION 17. NOTICE. Any notices required or desired to be given from one party to the other party to this Ordinance shall be in writing and shall be given and shall be deemed to have been served and received if (i) delivered in person to the address set forth below; (ii) deposited in an official depository under the regular care and custody of the United States Postal Service located within the confines of the United States of America and sent by certified mail, return receipt requested, and addressed to such party at the address hereinafter specified; or (iii) delivered to such party by courier receipted delivery. Either party may designate another address within the confines of the continental United States of America for notice, but until written notice of such change is actually received by the other party, the last address of such party designated for notice shall remain such party's address for notice. Ordinance No. 19-3694 Page 16 of 19 278 CITY City Manager City of Plainview 901 Broadway Plainview, Texas 79072 SECTION 18. GOVERNING LAW. COMPANY Community Service Manager Southwestern Public Service Company 600 South Tyler Amarillo, Texas 79101 This Franchise shall be governed by and construed in accordance with the laws of the State of Texas. SECTION 19. ACCEPTANCE. In order to accept this Franchise, Company must file with the City Secretary its written acceptance of this Franchise within thirty (30) days after its final passage and approval by City. Company shall pay all publication expenses regarding notification of the Franchise Ordinance. 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. SECTION 20. FUTURE AMENDMENTS. This Franchise Ordinance may be amended only by the mutual written agreement of the City and the Company. SECTION 21. REPEALER. All other franchise ordinances and parts of such ordinances or resolutions in conflict with this ordinance are hereby repealed to the extent of conflict with this Franchise Ordinance. SECTION 22. ORDINANCE PASSED AT PUBLIC MEETING. It is hereby officially found that the meeting at which this Ordinance is passed is open to the public and that due notice of this meeting was posted, all as required by law. SECTION 23. EFFECTIVE DATE. If Company accepts this Ordinance, by filing of its written acceptance, this Ordinance shall be effective as of August 1, 2019. If the Company fails to file such written acceptance of this Franchise Ordinance according to Section 19, then such Franchise Ordinance shall be rendered null and void. Ordinance No. 19-3694 Page 17 of 19 279 PASSED AND APPROVED on first reading this 25`h day of June, 2019. PASSED AND APPROVED on second reading this 23d day of July, 2019. Aetnnd�e/il Dunlap, Mayor ATTEST: A/I 11-----,% Belinda Hin&jod, City Secretary APPROVED AS TO CONTENT: Jeffrey Sadder, City Manager APPROVED AS TO FORM: d� fide ood m, Ci Attorney Ordinance No. 19-3694 Page 18 of 19