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HomeMy WebLinkAbout2011-O-10 - UNITED COOP FRANCHISE ORDINANCE • ORDINANCE NO. 2OL( l o AN ORDINANCE GRANTING TO UNITED ELECTRIC COOPERATIVE SERVICES, INC., 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 STEPHENVILLE, TEXAS, PROVIDING FOR COMPENSATION THEREFOR, PROVIDING FOR AN EFFECTIVE DATE AND A TERM OF SAID FRANCHISE, AND PROVIDING FOR WRITTEN ACCEPTANCE OF THIS FRANCHISE. • BE iT ORDAINED BY THE CITY COUNCIL OF STEPHENVILLE, TEXAS: SECTION 1. GRANT OF AUTHORITY: A. The City of Stephenville, Texas* ("City") hereby grants to United Electric Cooperative Services, inc., its successors and assigns (herein called "Company"), the right, privilege and franchise to construct, extend, maintain, repair, upgrade, remove, relocate, reconstruct 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 the City, electric power lines with all necessary or desirable appurtenances including underground conduits, poles, towers, wires, transmission lines and other structures, 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 9, subject to this consent by the City which is granted in accordance with Texas Utilities Code, Section 181.043. City also hereby grants to Company, for the term set out in Section 9, the following additional rights: (1)the right to install separate telephone and separate communication lines in the Public Rights-of-Way solely for the Company's own use; (2) the right to use Company's electric power lines to send and receive data solely for Company's own use; and (3) the right to use Company's electric power lines to provide "broadband over power lines" as defined in Section 43.003 of the Texas Utilities Code and related uses as permitted under Section 43.101 of the Texas Utilities Code. The Company's right to use its electric power lines to provide broadband over power lines services (BPL)shall be in accordance with state law. B. The provisions set forth in this Ordinance represent the terms and conditions under which Company shall construct, extend, maintain, repair, upgrade, remove, relocate, reconstruct and operate its system facilities within the Public Rights-of-Way of the City. Company, by its acceptance of this Franchise, agregs 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, the Texas Constitution, the City's Charter, the City's Code of Ordinances, 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 the Texas Public Utility Regulatory Act, other state or federal law, and the Texas Constitution. Nothing herein shall be deemed a waiver, release or relinquishment of either parry'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 law or regulation. The City shall provide Company notice and opportunity to review and comment upon proposed ordinances relating to the Public Rights-of-Way. United Elec tric,Cgoperatives Services,Inc./City of Stephenville Electric Franchise • Page 1 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 those set forth in Section 1.A. SECTION 2. USE OF PUBLIC RIGHTS-O.F-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 does 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 existing poles or installation of aerial lines on not more than 10.new poles, provide City reasonable advance notice, and obtain a permit, as required by the City's Code of Ordinances, as amended, 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, provided comparable standards are not in conflict with the National Electric Safety Code, 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 Manager's designated representative (the "City Manager") prior to construction; provided however, said approval shall not be unreasonably withheld. This approval will be obtained through the City's permitting process. 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 City Manager shall resolve the conflict and determine the location of the respective facilities within the Public Rights-of-Way. The City 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 conceming Company's use of the Public Rights-of-Way. • E. After completion of any work within the Public Rights-of-Way, Company shall restore the Public Rights-of-Way to as good a condition as when disturbed and shall promptly repair all damage caused by Company's activities pursuant to this Agreement.. F. Company shall cooperate with the City in providing complete' information regarding the location of current and future underground conduits and other appurtenances. United Electric Cooperatives Services,Inc./City of Stephenville Electric Franchise Page 2 • Reproducible copies of maps showing the location of all of company's system facilities within the then current City limits shall be furnished to the City upon request. The maps shall be provided in electronic digital format, if available. G. The Company shall relocate its facilities at its expenses 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, when reasonable and necessary, provided that the City shall provide Company with at least sixty (60) days prior written notice and shall specify*a new location for such facilities along the Public Rights-of-Way of City. H. 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 costs and expense documentation to City prior to the filing of the application. City shall provide reasonable prior written notice to Company of the deadline for Company to submit documentation of the costs and expenses of such relocation to City. I. 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 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 reimbursed 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 3: ABANDONMENT: 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. If the City adopts an ordinance which abandons any Public Rights-of-Way in which Company has facilities in use, such abandonment shall provide that, to the. extent permitted by law, it is conditioned upon (a) Company's right to maintain its use of the abandoned Public Rights-of-Way and (b) the obligation of the party(ies) to whom the Public Rights-of-Way is abandoned to reimburse Company for all removal 'or relocation expenses if Company agrees to a requested removal or relocation of its facilities following such abandonment. 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 to be included in relocation expense to be reimbursed by the party requesting the relocation and prepayment or bonding of such amount may be required by the Company prior to any such relocation. SECTION 4. INDEMNIFICATION AND INSURANCE: A. In consideration of the granting of this franchise, Company agrees to indemnify, defend, and hold harmless the City, its officers, agents and employees from and against all 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 United Electric Cooperatives Services,Inc./City of Stephenville Electric Franchise Page 3 ' R • person or persons or for damage to or loss of property caused by Company's intentional and/or negligent acts or omissions in connection with Company's operations in the Public Rights-of- Way; except that the indemnity provided for in this paragraph shall not apply to any liability determined by a court of competent jurisdiction'to have resulted from the sole negligence or intentional acts or omissions of the City, its officers, agents and employees. In addition, 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, responsibility for all costs of defense of Company and the City shall be apportioned between the City and Company based upon the comparative fault of each. It is not the intent of the City or Company to create any right or claim for the benefit of any third party. This indemnification provision is solely for the benefit of the City and Company and does not create or grant any rights, contractual or otherwise, to any other person or entity. B. In fulfilling its obligation to defend and indemnify City, the Company shall have the right to select defense counsel, subject to City's approval, which will not be unreasonably withheld. The Company shall in cooperation with .its insurers, endeavor to retain defense counsel within seven (7) business days of receipt of City's written notice that City is invoking its right to indemnification under this Contract. If the Company fails to retain counsel within such time period, City shall have the right to retain defense counsel on its own behalf, but subject to subsequent selection and substitution of defense counsel by Company as above provided in coordination with its insurer, as applicable) and the Company shall be liable for all reasonable defense costs incurred by City with respect to any liability against which City is indemnified by the Company. C. Company shall, at its sole cost and expense, obtain, maintain, and provide throughout the term of this Franchise, insurance in the amounts, types and coverages in accordance with the City's requirements. Such insurance coverages may be in the form of a self-insurance plan or by obtaining insurance which:meets the following: 1. Commercial general or excess liability on an occurrence or claims made form. When coverage is maintained on an occurrence basis, the minimum limits are five million dollars ($5,000,000) per occurrence and ten million dollars ($10,000,000) aggregate. To.the extent that coverage is maintained on a claims made form, the minimum limits are ten million dollars ($10,000,000) per occurrence and twenty million dollars ($20,000,000) aggregate. This coverage shall include the following: (a ) Products/completed operations to be maintained for one (1) year after termination of this Franchise. (b) Personal and advertising injury. (c) Contractual liability (d) Explosion, collapse, or underground (XCU) hazards. 2. Automobile liability coverage,with a minimum policy limit of ope million dollars ($1,000,000) combined single limit. This coverage shall include all owned, hired and non-owned automobiles. United Electric fooperatives Services,inc./City of Stephenville Electric Franchise Page 4 • • 3. Workers compensation and employers liability coverage. Statutory coverage limits for Coverage A and five hundred thousand dollars ($500,000) Coverage B employers' liability is required. 4. Company must name the City, its officers and employees, as an additional insured under the coverage required under Sections 4.C.1 and 4.C.2. The certificate of insurance must state that the City of Stephenville is an additional insured. 5. Coverages required to be maintained by Company under Sections 4.C.1, 4.C.2, and 4.C.3 shall include a waiver of subrogation in favor of the City, its officers, agents and employees. 6. Company will require its Contractors and subcontractors to maintain insurance consistent with Company's requirements of its contractor or subcontractor for similar work performed. 7. In the event Company enters into an agreement with another municipality which provides that the Company's insurance shall be primary and the City's insurance shall be non-contributory, Company shall provide the same endorsement to the City. 8. Company shall provide the City with evidence of the form and basis for insurance coverage or self insurance, as applicable, within thirty (30) days of the effective date of. this franchise ordinance, and annually thereafter as applicable insurance coverages renew. Company will not be required to furnish separate proof of insurance 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 6. 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 or the costs to repair damages to the Public Rights-of-Way or to indemnify the City as required herein, Company shall pay to the City the following: A. On an annual basis, as authorized by Section 33.008(f) of the Texas Utilities Code, as amended, a charge of$.0032 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, payable as follows: United Electric Cooperatives Services,Inc./City of Stephenville Electric Franchise Page 5 • 1. The annual payment will be due and payable on or before April 1 of each year throughout the life of this franchise. The payment will be based on 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 during the preceding twelve month period ended December 31 (January 1 through December 31). The payment will be for the rights and privileges granted hereunder for the calendar year (January 1 through December 31) preceding the'payment date. 2. The first payment hereunder shall be due and payable on or before April 1, 2012 based on the period of January 1, 2011 through December 31, 2011. for the privilege period of January 1, 2011 through December 31, 2011. The final payment under this franchise is due on or before April 1, 2027 and covers the basis period of January 1, 2026 through December 31, 2026 and for the privilege period of January 1, 2026 through December 31, 2026; and • 3. After the final payment date of April 1, 2027, Company may continue to make payments in accordance with the above schedule. 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. With each payment required by Section 6. A, the Company shall provide the.City a statement by an employee of Company which certifies the payment as correct. C. 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 7. OTHER FRANCHISES: • A. This Section 7 applies only if, after the effective date of this Franchise Agreement: 1. Company.enters into a new Municipal franchise agreement with another municipality or renews an existing municipal franchise agreement with another municipality; and, 2. Such municipality has a population of 5,000 or more; and, 3. Such new or renewed franchise agreement provides for a method of calculation of franchise fees for use of the Public Rights-of-Way which is different than a fixed fee per kilowatt hour, including but not limited to the fixed fee per kilowatt hour as provided in Section 33.008(b)of the PURA, and such different Method of calculation is arrived at by mutual agreement of Company and the other municipality as permitted under 33.008(f) of the PURA; and, United Electric Cooperatives Services,Inc./City of Stephenville Electric Franchise Pig 4. Such agreed and permitted method of calculation, if applied to the City, would result in a greater amount of franchise fees (excluding all franchise fees that may be attributable to discretionary, ancillary or other services) owed the City than under this Franchise Agreement B. In the event of an occurrence as described in Section 7 hereof, City shall have the option to: 1. Have Company select, within.thirty (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 7.8.1. 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 7.B.1. C. City may not exercise the option provided in Section 7 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 7, 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 7. • E. Notwithstanding any other provision of this franchise, should the City exercise the option provided in Section 7, 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 7, then Company shall have the right to cancel all of the modifications to this franchise made pursuant to Section 7 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 7. F. The provisions of Section 7 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 7 do not apply to differences in the franchise fee factor that result from the application of the fixed fee per;kilowatt hour methodology set out in Section 33.008(b)of PURA or a successor methodology. United Electric Cooperatives Services,Inc./City of Stephenville Electric Franchise Page 7 SECTION 8: RECORDS AND REPORTS:. A. The Company shall keep complete and accurate books of accounts and records of its business and operations under and in connection with the franchise. To the extent practicable, all such books of accounts and records shall be made available at the Company's principal office. B. For the period then subject to audit under Section 33.008(e) of the Texas Utility Code, the City shall, upon 30 days prior written notice to the Company, have the right to have access to, and to inspect the books of accounts and records of the Company to ascertain the correctness of any payments and reports to the City, and as to the Company's compliance with this Franchise. C. The City may cause to be conducted, no more than once annually, an audit to verify the accuracy of the method used to compute the Company's franchise fee payments to the City and to verify that all accounts for retail electric customers within the City are properly included in the computation of the franchise fee. •Said audit shall be limited to the time period subject to audit under the Texas Utility Code Section 33.008(e). City shall provide Company with notice of all annexation activity for determination of metered sales to be included, per Section 6 A, at least 30 days prior to any applicable franchise fee being due by Company. If either party discovers that the Company has failed to pay the entire or correct amount of compensation due, the correct amount shall be determined and the City shall be paid by the Company within thirty (30) calendar days of such-determination. Any overpayment to the City through error or otherwise, will, at the option of the City, either be refunded within thirty (30) days of determination or be 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. SECTION 9. TERM: This Ordinance shail 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 begin on March 1, 2011 and expire on December 31, 2026; 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 one (1) year 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 10. 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 11. DEFAULT. REMEDIES, TERMINATION: A. In addition to all other rights which the City has pursuant to law or equity, the City reserves the right to revoke, terminate or cancel this franchise, and all rights and privileges pertaining thereto in the event that Company fails to.comply with a material provision of this United Electric Cooperatives Services,Inc./City of Stephenville Electric Franchise Page 8 • • Franchise. Sections 2, 4, 6, 7, 8 and 9 are material provisions of this Franchise. Before termination, the City shall notify the Company, in writing, of the alleged failure of the•Company to comply with a material provision of this Franchise, which notice shall specify the alleged failure with reasonable particularity. The Company shall, upon its receipt of such notice, either 1. diligently cure such failure, but in any event within not more than thirty (30)days after such receipt; or 2. if such failure does not result from the failure to make a monetary payment and cannot with due diligence be cured within the said thirty(30) day period, then cure such failure within an additional reasonable period of time so long as the Company has submitted to the City in writing its plan (including, without limitation, the time period)to cure such failure and has commenced curative action within the said thirty (30) day period, and thereafter continues to diligently attempt to cure the failure; or 3. if the Company reasonably believes that the failure specified in the notice from the City is not a failure of a material provision of this Franchise, submit to the City within ten (10) days after its receipt of the hotice the Company's written response specifying facts and presenting arguments in refutation or defense of such alleged failure (the"Company's Defense"). B. In the event that the Company does not comply with Section 11A subparagraphs 1, 2, or 3 above, or if the Company does comply with Section 11A subparagraph 3 above but the City, after its review of the Company's Defense, nevertheless believes that the Company has failed to comply with a material provision of this Franchise and..has failed to timely cure such failure per Section 11A subparagraphs 1 or 2 above, the City may declare:this an Uncured Event of Default, which shall entitle City to exercise the remedies provided for in Section 11C. Notice of such declaration shall be given to the Company prior to the City's exercise of any such remedies. C. In the event that such cure is not forthcoming, City shall be entitled to exercise any and all of the following 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 commencement of any other action which may be available to the City; or 4. The termination of this Franchise in accordance with the provisions of Section 11 D. D. In accordance with the provisions of Section 11.C.4, this Franchise may be terminated upon at least 30 business days' prior Written notice to Company. City shall notify Company in writing at least 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 United ElectricCooperattves Services,Inc./City of Stephenville Electric Franchise - Page 9 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 within 30 days following the effective date of such decision. 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 a court or administrative 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 in accordance with the Texas Utilities Code. E. The rights and remedies of City and Company set forth in this Ordinance 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 breach of this agreement: The failure of the City to insist upon strict performance of any one or more of the terms or provisions of this Franchise Ordinance shall not be construed as a waiver or relinquishment of any such term or provision in the future. F. This 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 Johnson County, Texas. SECTION 12. 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: If to the Company: City Manager < - dnited Electric Cooperative Services, Inc. City of Stephenville Attention: General Manager 298 W.Washington Street 3309 N. Main Stephenville, Texas 76401-4257 P.O. Box 16 Stephenville, Texas 76033-0016 SECTION 13. 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 this Ordinance, so long as the economic or legal effect of such holding upon this Ordinance does not materially adversely affect either party. Upon any such holding, the parties shall negotiate in good faith to modify this Ordinance so as to continue the original intent of the parties as closely as reasonably possible. United Electric Cooperatives Services,Inc./City of Stephenville Electric Franchise Page 10 • SECTION 14. ACCEPTANCE: This Ordinance shall become effective upoh Company's written acceptance hereof, said written acceptance to be filed by Company with the City Secretary of the City within sixty (60) days after final passage and approval hereof. SECTION 15. APPROVAL AT PUBLIC MEETINGS: It is hereby officially found that the meetings at which this Ordinance was passed were open to the public and that due notice of such meetings was posted, all as required by law. PASSED AND APPROVED by the City Council of the City of Stephenville, Texas, on first reading on the 1st day of March, 2011, at which meeting a quorum was present and voting. PASSED AND APPROVED by the City Council of the City of Stephenville, Texas, on second reading on this the 5th day of April, 2011, at which meeting a quorum was present and voting. PASSED AND APPROVED by the City Council of the City of Stephenville, Texas, on third reading on this the 7th day of June, 2011, at which meeting a quorum was present and voting. • cy A. H nter, May r A EST: • (Y • Cindy L tafford, Ci$ �.ecretary APPROVED AS TO FORM AND LEGALITY: Randy Thomas, City Attorney Date: O(0/0-1 /24U United Electric Cooperatives Services,Inc./City of Stephenville Electric Franchise Page 11