HomeMy WebLinkAbout09-3514 ordz3g cc.
ORDINANCE NO. 09-3514
AN ORDINANCE GRANTING TO SOUTHWESTERN PUBLIC SERVICE
COMPANY, 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 ordinances 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. 09-3514 Page 1 of 18
a3g b
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, 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 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-
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 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 City's 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. 09-3514 Page 2 of 18
a~~ G
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 the Plainview City Code, 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 facilities in the Public Rights-of-Way shall be subject
to the approval of the City Manager or designee. In determining the location of the
Company's facilities within the City, the Company shall minimize interferences with
then-eaci~t~ng or planned underground structures of the City or other utility franchisees.
In determining the location of the facility of the City and other utility franchisees and
other users of the Public Right-of-Way, the City shall 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 that existed prior to the excavation. The public shall be protected by barriers
Ordinance No. 09-3514 Page 3 of 18
X38 d
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 not engage in excessive trimming. 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 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. 09-3514 Page 4 of 18
~J~ ca._
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 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 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, employees, contractors or subcontractors, 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 agents, representatives or employees or any other
person or entity. 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
Ordinance No. 09-3514 Page 5 of 18
a3~-~
Company prompt notice of the making of any claim or the commencement of any action,
suit or other 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
million dollars ($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,
Ordinance No. 09-3514 Page 6 of 18
a~~
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 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
ordinance No. 09-3514 Page 7 of 18
~ 3~h
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 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 of the 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 (45th) 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
Ordinance No. 09-3514 Page 8 of 18
O~J1S I -
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
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.
r.
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. 09-3514 Page 9 of 18
a3~~ . .
F. Interest on late payment shall be calculated in accordance with § 183.003,
Tex. Util. 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.G.
(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
Ordinance No. 09-3514 Page 10 of 18
~3~~.
immediately treat subsequent underpayment as an Uncured Event
of Default and exercise the remedies provided for in Section 13C.
(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),
interest on the total amount of underpayment shall be paid at the
interest rate described in Section 7.G., 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), 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.G., 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 its 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
Ordinance No. 09-3514 Page 11 of 18
~~~~
auditors as necessary to exercise City's rights under this agreement, with appropriate
promises from such persons 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. 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
Ordinance No. 09-3514 Page 12 of 18
a3~~
Company of the deadline for Company to submit documentation of the costs and
expenses of such relocation to City.
C. If City receives a request for or itself initiates the abandonment of any
Public Rights-of-Way in which Company has facilities, Company shall be notified of
such and given opportunity to comment about the impact of the proposed
abandonment. Any such abandonment shall be conditioned on the grant of a utility
easement for Company's right to continue its use of the former Public Rights-of-Way. If
the party to whom the Public Right-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.
D. If the City requires the Company to adapt or conform its facilities, or in any
manner to alter, relocate, or change its property to enable any other entity that is not a
part of the City or the consolidated corporate structure of the Company to use, or use
with greater convenience, said Public Right-of-Way, the Company shall not be bound to
make such changes until such other entity 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 property
or facilities.
SECTION 11. TRANSFER AND ASSIGNMENT.
The rights granted by this Franchise inure to the benefit of Company and any
parent, subsidiary, or affiliate now or hereafter existing. Upon assignment to such
parent, subsidiary or affiliate, such entity assumes all obligations of Company hereunder
and is bound to the same extent as Company hereunder. Company shall give City
written notice within sixty (60) days of assignment to a parent, subsidiary or affiliate. In
the went Company assigns this Franchise to someone other than a parent, subsidiary
or affiliate (Assignee), Company shall give City notice concurrently with notice provided
to the Public Utility Commission of the sale or transfer of assets. Any such assignment
shall require that said Assignee assume all obligations of Company and is bound to the
same extent as Company hereunder. If, within the first sixty (60) days after assignment
to someone other than a parent, subsidiary or affiliate, City shall identify a failure to
comply with a material provision of this Franchise, City shall have the right to treat such
failure to comply as an Uncured Event of Default and immediately implement the
provisions of Section 13, including the right to terminate the Franchise.
SECTION 12. TERM.
The term of this agreement shall be in full force and effect for a period of ten (10)
years commencing on the effective date of this nonexclusive franchise agreement. If
Company accepts this Ordinance, by the filing of its written acceptance, this Ordinance
shall be effective as of August 1, 2009 and end July 31, 2019.
Ordinance No. 09-3514 Page 13 of 18
~ ~~ ~
SECTION 13. DEFAULT, REMEDIES AND TERMINATION.
A. Events of Default. The occurrence, at any time during the term of the
Franchise, 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 breach or violation of any of terms, covenants,
representations, or warranties contained herein or Company's
failure to perform any material obligation contained herein.
(3) The underpayment of franchise fees by more than five percent (5%)
for two consecutive audit periods.
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 13.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 13.C.
(3) If the Event 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 13.C.
C. Remedies. The City shall notify the Company in writing of an alleged
Uncured Event of Default as described in Section 13.B, which notice shall specify the
alleged failure with reasonable particularity. The Company shall, within thirty (30)
calendar 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 provide a written response to
the City that either: (i) documents facts and arguments refuting or defending alleged
default; (ii) provides a plan to cure and sets forth the method and time schedule for
Ordinance No. 09-3514
Page 14 of 18
~~~o
accomplishing such cure; or (iii) presents facts and arguments refuting or defending
such Uncured Event of Default. The City will review Company's written response and
determine the acceptability of the response. If City is not in agreement with Company's
response or if the 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 in accordance with Section 13.E.
D. Remedies Not Exclusive. The rights and remedies of City and Company
set forth in this Franchise shall be in addition to, and not in limitation of, any other rights
and remedies provided by law, in equity, or by administrative proceeding before the
Public Utility Commission of Texas or the Federal Energy Regulatory Commission, or
respective successor or similar governmental agencies. 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 Agreement, 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 Agreement.
E. Termination. In accordance with the provisions of Section 13.C, this
Franchise Agreement may be terminated upon thirty (30) business days prior written
notice to Company. City shall notify Company in writing not less than seventy-two (72)
`- hours 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 decision of the
City Council shall be final but may be appealed to any court or regulatory authority
having jurisdiction. Until the termination becomes effective, the provisions of this
Franchise shall remain in effect for all purposes.
F. The failure of the City to insist in any one or more instances upon the strict
performance of any one or more of the terms or provisions of this Franchise shall not be
construed as a waiver or relinquishment for the future of any such term or provision, and
the same shall continue in full force and effect. No waiver or relinquishment shall be
deemed to have been made by the City unless said waiver or relinquishment is in
writing and signed by the City.
Ordinance No. 09-3514 Page 15 of 18
~~~
1
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 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 Untied 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. 09-3514 Page 16 of 18
~~~ ~!'
CITY
City Manager
City of Plainview
901 Broadway
Plainview, Texas 79072
SECTION 18. GOVERNING LAW.
COMPANY
Community Service Manager
Xcel Energy Corporation
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 expense regarding notification of
the Franchise Ordinance. Company, by its acceptance of this Franchise, agrees that all
such lawful regula~ory 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.
- c.
This Franchise Ordinance may be amended only by the mutual written
agreement of the City and the Company.
SECTION 21. REPEALER.
:.AEI other franchise ordinances and parts of such ordinances or resolutions in
con~licf 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, 2009. 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. 09-3514 Page 17 of 18
~ ~~r
PASSED AND APPROVED on first reading this 23~d day of July, 2009.
PASSED AND APPROVED on second reading this 28th day of July, 2009.
~.
('_ ~ ~~
John C. Anderson, Mayor
A
inda Hinojosa, C
APPROVED AS TO ONTENT:
Greg I ity M r
APPROVED AS TO FORM:
Les ie Spear Pe ce, City Attorney
Ordinance No. 09-3514
Page 18 of 18