O539ORDINANCE NO. 539
AN ORDINANCE GRANTING TO ONCOR ELECTRIC DELIVERY COMPANY LLC,
ITS SUCCESSORS AND ASSIGNS, AN ELECTRIC POWER FRANCHISE TO USE
THE PRESENT AND FUTURE STREETS, ALLEYS, HIGHWAYS, PUBLIC UTILITY
EASEMENTS, PUBLIC WAYS AND OTHER PUBLIC PROPERTY (PUBLIC RIGHTS -
OF -WAY) OF KENNEDALE, TEXAS, PROVIDING FOR THE REPEAL OF ALL PRIOR
FRANCHISE ORDINANCES TO ONCOR ELECTRIC DELIVERY COMPANY LLC, ITS
PREDECESSORS AND ASSIGNS, PROVIDING FOR COMPENSATION THEREFOR,
PROVIDING FOR AN EFFECTIVE DATE AND A TERM OF SAID FRANCHISE,
PROVIDING FOR WRITTEN ACCEPTANCE OF THIS FRANCHISE, AND FINDING
THAT THE MEETING AT WHICH THIS ORDINANCE IS PASSED IS OPEN TO THE
PUBLIC.
BE IT ORDAINED BY THE CITY COUNCIL OF KENNEDALE, TEXAS:
SECTION 1. GRANT OF AUTHORITY
A. The City of Kennedale, Texas ( "City ") hereby grants to Oncor Electric
Delivery Company LLC, its successors and assigns (herein called "Company "), the
right, privilege and franchise to construct, extend, maintain and operate in, along, under
and across the present and future streets, alleys, highways, public utility easements,
public ways, and other public property ( "Public Rights -of- Way ") of Kennedale, electric
power lines, with all necessary or desirable appurtenances (including underground
conduits, poles, towers, wires, transmission lines and other structures, and telephone
and communication lines solely for its own use), for the purpose of delivering electricity
to the City, the inhabitants thereof, and persons, firms and corporations beyond the
corporate limits thereof, for the term set out in Section 10, subject to this consent by the
City in accordance with Texas Utilities Code, Section 181.043 and in accordance with
the Public Utility Regulatory Act (PURA) and all other applicable laws, rules, and
regulations.
B. The provisions set forth in this ordinance represent the terms and
conditions under which Company shall construct, operate, and maintain its system
facilities within the Public Rights -of -Way of the City. Company, by its acceptance of this
Franchise, agrees that all such lawful regulatory powers and rights as the same may be
from time to time vested in the City shall be in full force and effect and subject to the
exercise thereof by the City at any time. The grant to Company in this Franchise is
subject to the terms and conditions contained herein, PURA, the Texas Constitution,
and the City's Code of Ordinances (unless the City's Ordinances are otherwise in
conflict with any federal or state laws, rules, or regulations, or this Franchise), all as
amended, and subject to all other applicable and controlling local, state and federal
laws, including the rules and regulations of any and all agencies thereof, whether
presently in force or whether enacted or adopted at any time in the future. This
franchise agreement shall in no way affect or impair the rights, obligations or remedies
of the parties under PURA, other state or federal laws, rules or regulations, and the
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Texas Constitution. Nothing herein shall be deemed a waiver, release or
relinquishment of either party's right to contest, appeal, or file suit with respect to any
action or decision of the other party, including ordinances adopted by the City, that
Company believes are in violation of any federal, state, or local laws, rules or
regulations. The City shall provide Company notice and opportunity to review and
comment upon proposed ordinances relating to the Public Rights -of -Way.
C. This Franchise does not grant to the Company the right, privilege or
authority to engage in any other activities within the City other than as specified in this
Franchise.
SECTION 2. USE OF PUBLIC RIGHTS -OF -WAY
A. The poles, towers and other structures shall be so erected as not to
unreasonably interfere with traffic over streets, alleys and highways.
B. Company shall, except in cases of (i) emergency conditions or (ii) routine
maintenance and repair of facilities that do not involve any of the following (a) cutting or
breaking of pavement or (b) closure of traffic lane for longer than 24 hours or (c) boring
or (d) excavation greater than 100 cubic feet or (iii) connection of real property to a
utility service on the same side of the Public Rights -of -Way if connection does not
require a pavement cut in the Public Rights -of -Way or (iv) replacement of a single
damaged pole and associated work within a ten (10) foot radius of the damaged pole or
(v) installation of aerial lines on less than 11 existing poles or installation of aerial lines
on less than 11 new poles, provide City reasonable advance notice, and obtain a
permit, (if required by City Ordinance), prior to performing work in the Public Rights -of-
Way, except in no instance shall Company be required to pay fees or bonds related to
its use of the Public Rights -of -Way, despite the City's enactment of any ordinance
providing the contrary. Company shall construct and maintain its facilities in
conformance with the applicable provisions of the National Electric Safety Code or such
comparable standards as may be adopted, and in a good and workmanlike manner.
C. The City retains the right to make visual, non - invasive inspections of the
Company's facilities and upon reasonable notice and request, to require the Company
to make available for inspection records or data to demonstrate its current compliance
with the terms of this Franchise.
D. The location of Company's facilities in the Public Rights -of -Way shall be
subject to approval by the City Manager or the City Manager's designated
representative (the "Manager ") prior to construction; provided however, said approval
shall not be unreasonably withheld. This approval will be obtained through the City's
permitting process (if required by City Ordinance). In the event of a conflict between the
location of the proposed facilities of Company and the locations of the facilities of City or
other Public Rights -of -Way users which exist or have been authorized by the City, the
Manager shall resolve the conflict and determine the location of the respective facilities
within the Public Rights -of -Way. The Manager will designate a reasonable alternate
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location for Company's facilities if a reasonable alternate location exists. The Company
will use reasonable efforts to work with the City to avoid installing its facilities in park or
City property other than utility easements or street, alley, or highway Right -of -Way.
Company has the right to request City Council review of this or any actions concerning
Company's use of the Public Rights -of -Way.
E. The Company shall restore at the Company's expense, all work within the
City Rights -of -Way, to a condition equally as good as it was prior to being disturbed by
Company's construction, excavation, repair or removal or to a condition agreed upon by
City and Company. If City and Company agree that there are extenuating
circumstances that do not allow for restoration of all work within the City Rights -of -Way
to a condition equally as good as it was prior to being disturbed by Company, City and
Company will negotiate an alternative restoration plan (in writing) to remedy the
situation.
F. Company shall cooperate with the City in providing information regarding
the location of current and future overhead and underground wires and poles within
City's Public Rights -of -Way. Reproducible copies of maps showing the location of all
overhead and underground wires and poles within the Public Rights -of -Way shall be
furnished to the City upon reasonable request, if available. The maps shall be provided
in electronic digital format, if available.
SECTION 3: RELOCATION AND ABANDONMENT
The City reserves the right to lay, and permit to be laid, storm, sewer, gas, water,
wastewater and other pipe lines, cables, and conduits, or other improvements or to do
and permit to be done any underground or overhead work that City in its sole discretion
determines may be necessary or proper in, across, along, over, or under Public Rights -
of -Way occupied by Company. The City also reserves the right to change in any
manner any curb, sidewalk, highway, alley, public way, street, utility lines, storm sewers,
drainage basins, drainage ditches, and the like.
Upon request by City, Company shall relocate its facilities at the expense of the City
except as otherwise required by Section 37.101(c) of PURA, which statutory provision
currently states the governing body of a municipality may require an electric utility to
relocate the utility's facility at the utility's expense to permit the widening or straightening
of a street. City and Company further agree that widening and straightening of a street
includes the addition of any acceleration, deceleration, center or side turn lanes, and
sidewalks (meaning sidewalks done in conjunction with widening or straightening of a
street), provided that the City shall provide Company with at least thirty (30) days notice
and shall specify a new location for such facilities along the Public Rights -of -Way of the
street.
If the City requires the Company to adapt or conform its Facilities, or in any manner to
alter, relocate, or change its Facilities to enable any other corporation or person to use,
or use with greater convenience, said street, alley, highway, or public way, the
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Company shall not be bound to make such changes until such other corporation or
person shall have undertaken, with good and sufficient bond, to reimburse the Company
for any costs, loss, or expense which will be caused by, or arises out of such change,
alteration, or relocation of Company's Facilities.
If City abandons any Public Rights -of -Way in which Company has facilities such
abandonment shall be conditioned on Company's right to maintain its use of the former
Public Rights -of -Way and on the obligation of the party to whom the Public Rights -of-
Way is abandoned to reimburse Company for all removal or relocation expenses if
Company agrees to the removal or relocation of its facilities following abandonment of
the Public Rights -of -Way. If the party to whom the Public Rights -of -Way is abandoned
requests the Company to remove or relocate its facilities and Company agrees to such
removal or relocation, such removal or relocation shall be done within a reasonable time
at the expense of the party requesting the removal or relocation. If relocation cannot
practically be made to another Public Rights -of -Way, the expense of any right -of -way
acquisition shall be considered a relocation expense to be reimbursed by the party
requesting the relocation.
SECTION 4. INDEMNIFICATION
A. In consideration of the granting of this Franchise, Company shall, at its
sole cost and expense, indemnify and hold the City, and its past and present officers,
agents and employees harmless against any and all liability arising from suits, actions
or claims of injury to any person or persons, or damages to any property arising out of,
or occasioned by the intentional and /or negligent acts or omissions of the Company or
any of its officers, agents, or employees, in connection with Company's construction,
maintenance and operation of Company's System in the Public Rights -of -Way, including
any reasonable court costs, expenses and defenses thereof.
B. This indemnity shall only apply to the extent that the loss, damage or
injury is attributable to the negligence or wrongful act or omission of the Company, its
officers, agents or employees, and does not apply to the extent such loss, damage or
injury is attributable to the negligence or wrongful act or omission of the City, or the
City's officers, agents, or employees or any other person or entity. This provision is not
intended to create a cause of action or liability for the benefit of third parties but is solely
for the benefit of the Company and the City.
C. In the event of joint and concurrent negligence or fault of both the
Company and the City, responsibility and indemnity, if any, shall be apportioned
comparatively between the City and Company in accordance with the laws of the State
of Texas without, however, waiving any governmental immunity available to the City
under Texas law and without waiving any of the defenses of the parties under Texas
law. Further, in the event of joint and concurrent negligence or fault of both the
Company and the City, responsibility for all costs of defense shall be apportioned
between the City and Company based upon the comparative fault of each.
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D. In fulfilling its obligation to defend and indemnify City, Company shall have
the right to select defense counsel, subject to City's approval, which will not be
unreasonably withheld. Company shall retain defense counsel within seven (7)
business days of City's written notice that City is invoking its right to indemnification
under this Franchise. If Company fails to retain counsel within such time period, City
shall have the right to retain defense counsel on its own behalf, and Company shall be
liable for all reasonable defense costs incurred by City, except as otherwise provided in
Section 4.B and 4.C.
SECTION 5. LIABILITY INSURANCE:
Company shall, at its sole cost and expense, obtain, maintain, or cause to be
maintained, and provide, throughout the term of this Franchise, insurance in the
amounts, types and coverages in accordance with the following requirements. Such
insurance may be in the form of self- insurance to the extent permitted by applicable law
or by obtaining insurance, as follows:
A. Commercial general or excess liability on an occurrence or claims made
form with minimum limits of five million dollars ($5,000,000) per occurrence and ten
million dollars ($10,000,000) aggregate. This coverage shall include the following:
(1) Products /completed operations to be maintained for the
warranty period.
(2) Personal and advertising injury.
(3) Contractual liability.
(4) Explosion, collapse, or underground (XCU) hazards.
B. Automobile liability coverage with a minimum policy limit of one million
dollars ($1,000,000) combined single limit each accident. This coverage shall include
all owned, hired and non -owned automobiles.
C. Workers compensation and employers liability coverage. Statutory
coverage limits for Coverage A and five hundred thousand dollars ($500,000) bodily
injury each accident, five hundred thousand dollars ($500,000) each employee bodily
injury by disease, and five hundred thousand dollars ($500,000) policy limit bodily injury
by disease Coverage B employers' liability are required. Company must provide the
City with a waiver of subrogation for worker's compensation claims.
D. Company must name the City, which includes all authorities,
commissions, divisions and departments, as well as elected and appointed officials,
agents, employees and volunteers, as an additional insureds under the coverage
required herein, except Worker's Compensation Coverage. The certificate of insurance
must state that the City is an additional insured.
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E. Coverages required to be maintained under Sections 5.A, 5.B., and 5.C.
shall include a waiver of subrogation in favor of the City, its officers, agents and
employees.
F. Company will require its contractors and subcontractors to maintain, at
their sole cost and expense, a minimum of three million dollars ($3,000,000) each
occurrence or each accident general liability and automobile liability throughout the
course of work performed. Also, contractors and subcontractors will be required to
maintain statutory workers' compensation benefits in accordance with the regulations of
the State of Texas or state of jurisdiction as applicable. The minimum limits for
employers' liability insurance will be five hundred thousand dollars ($500,000) bodily
injury each accident, five hundred thousand dollars ($500,000) each employee bodily
injury by disease, and five hundred thousand dollars ($500,000) policy limit bodily injury
by disease.
The Company will provide proof of its insurance in accordance with this Franchise within
30 days of the effective date of the Franchise and annually thereafter as applicable
insurance coverages renew. Company will not be required to furnish separate proof
when applying for permits.
SECTION 6. NON - EXCLUSIVITY:
This franchise is not exclusive, and nothing herein contained shall be construed so as to
prevent the City from granting other like or similar rights, privileges and franchises to
any other person, firm, or corporation.
SECTION 7. CONSIDERATION
In consideration of the grant of said right, privilege and franchise by the City and as full
payment for the right, privilege and franchise of using and occupying the said Public
Rights -of -Way, and in lieu of any and all occupation taxes, assessments, municipal
charges, fees, easement taxes, franchise taxes, license, permit and inspection fees or
charges, street taxes, bonds, street or alley rentals, and all other taxes, charges, levies,
fees and rentals of whatsoever kind and character which the City may impose or
hereafter be authorized or empowered to levy and collect, excepting only the usual
general or special ad valorem taxes which the City is authorized to levy and impose
upon real and personal property, sales and use taxes, and special assessments for
public improvements, Company shall pay to the City the following:
A. A final annual payment was made on or before March 15, 2013, for the
basis period of January 1, 2012 through December 31, 2012, for the
privilege period of January 1, 2013 through December 31, 2013 in
accordance with the payment schedule in the previous franchise
agreement.
B. As authorized by Section 33.008(b) of PURA, the original franchise fee
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factor calculated for the City in 2002 was 0.002928 (the "Base Factor "),
multiplied by each kilowatt hour of electricity delivered by Company to
each retail customer whose consuming facility's point of delivery is located
within the City's municipal boundaries for determining franchise payments
going forward.
Due to a 2006 agreement between Company and City the franchise fee
factor was increased to a franchise fee factor of 0.003074 (the "Current
Factor "), multiplied by each kilowatt hour of electricity delivered by
Company to each retail customer whose consuming facility's point of
delivery is located within the City's municipal boundaries on an annual
basis.
However, should the Public Utility Commission of Texas at any time in the
future disallow Company's recovery through rates of the higher franchise
payments made under the Current Factor as compared to the Base
Factor, then the franchise fee factor shall immediately revert to the Base
Factor of 0.002928 and all future payments, irrespective of the time period
that is covered by the payment, will be made using the Base Factor.
1. Effective December 15, 2013 Company shall begin quarterly Pre -
Pay payments as follows:
Payment Due
Basis Period
Privilege Period
December 15
March 15
June 15
September 15
Jan. 1 — March 31
April 1 — June 30
July 1 — Sept. 30
Oct. 1 — Dec. 31
Jan. 1 — March 31
April 1— June 30
July 1 — Sept. 30
Oct. 1. — Dec. 31
2. The first payment hereunder shall be due and payable on or
before December 15, 2013 and will cover basis period of
January 1, 2013 through March 31, 2013 for the privilege period
of January 1, 2014 through March 31, 2014. If this Franchise is
not effective prior to the first quarterly payment date, Company
will pay any payments due within 30 days of the effective date of
this agreement. The final payment under this Franchise is due
on or before September 15, 2027 and covers the basis period of
October 1, 2026 through December 31, 2026 for the privilege
period of October 1, 2027 through December 31, 2027; and
3. After the final payment date of September 15, 2027, Company
may continue to make payments in accordance with the above
schedule. The City acknowledges that such continued payments
will correspond to privilege periods that extend beyond the term
of this franchise and that such continued payments will be
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recognized in any subsequent franchise agreement as full
payment for the relevant periods.
C. On a prospective basis; a sum equal to four percent (4 %) of gross
revenues received by Company from services identified as DD1 through
DD24 in Section 6.1.2 "Discretionary Service Charges," in its Tariff for
Retail Delivery Service (Tariff), effective 1/1/2002, that are for the account
and benefit of an end -use retail electric consumer. Company will, upon
request by City, provide a cross reference to Discretionary Service Charge
numbering changes that are contained in Company's current approved
Tariff.
The franchise fee amounts based on "Discretionary Service
Charges" shall be calculated on an annual calendar year basis,
i.e. from January through December 31 of each calendar year.
2. The franchise fee amounts that are due based on "Discretionary
Service Charges" shall be paid at least once annually on or
before April 30 each year based on the total "Discretionary
Service Charges ", as set out in Section 7.C, received during the
preceding calendar year. The initial Discretionary Service
Charge franchise fee amount will be paid on or before April 30,
2015 and will be based on the calendar year January 1 through
December 31, 2014. The final Discretionary Service Charge
franchise fee amount will be paid on or before April 30, 2028
and will be based on the calendar year of January 1 through
December 31, 2027.
3. Company may file a tariff or tariff amendment(s) to provide for
the recovery of the franchise fee on Discretionary Service
Charges.
4. City agrees (i) to the extent the City acts as regulatory authority,
to adopt and approve that portion of any tariff which provides for
100% recovery of the franchise fee on Discretionary Service
Charges; (ii) in the event the City intervenes in any regulatory
proceeding before a federal or state agency in which the
recovery of the franchise fees on such Discretionary Service
Charges is an issue, the City will take an affirmative position
supporting the 100% recovery of such franchise fees by
Company and; (iii) in the event of an appeal of any such
regulatory proceeding in which the City has intervened, the City
will take an affirmative position in any such appeals in support of
the 100% recovery of such franchise fees by Company.
5. City agrees that it will take no action, nor cause any other
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person or entity to take any action, to prohibit the recovery of
such franchise fees by Company.
6. In the event of a regulatory disallowance of the recovery of the
franchise fees on the Discretionary Service Charges, Company
will not be required to continue payment of such franchise fees.
D. With each payment of compensation required by Section 7.13, Company
shall furnish to City a statement that provides the franchise basis period,
the total amount of kilowatt hours of electricity delivered during the
franchise basis period by the Company to retail customers whose
consuming facility's point of delivery is located within the City's municipal
boundaries, and the privilege period covered by the payment. The parties
agree that any information exchanged or provided to the other party is true
and correct to the best of their knowledge.
E. With each payment of compensation required by Section 7.C, Company
shall furnish to the City a statement reflecting the total amount of gross
revenues received by Company within the City's municipal boundaries for
services identified in its Tariff, Section 6.1.2, "Discretionary Service
Charges," Items DD1 through DD24. The parties agree that any
information exchanged or provided to the other party is true and correct to
the best of their knowledge.
F. If Company fails to pay when due any payment provided for in this
Section, Company shall pay such amount plus interest from such due date
until payment is received by City. Interest shall be calculated in
accordance with the interest rate for customer deposits established by the
PUC in accordance with Texas Utilities Code Section 183.003 for the time
period involved.
SECTION 8. MOST FAVORED NATIONS
A. This Section 8 applies only if, after the effective date of this Franchise
Agreement, Company enters into a new municipal franchise agreement or renews an
existing municipal franchise agreement with another municipality that provides for a
different method of calculation of franchise fees for use of the Public Rights -of -Way than
the calculation under PURA, Section 33.008(b), which, if applied to the City, would
result in a greater amount of franchise fees owed the City than under this Franchise
Agreement.
B. In the event of an occurrence as described in Section 8 hereof, City shall
have the option to:
1. Have Company select, within 30 days of the City's request,
any or all portions of the franchise agreement with the other
municipality or comparable provisions that, at Company's sole
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discretion, must be considered in conjunction with the different method
of the calculation of franchise fees included in that other franchise
agreement; and
2. Modify this franchise agreement to include both the different
method of calculation of franchise fee found in the franchise agreement
with the other municipality and all of the other provisions identified by
Company pursuant to Section 8.13.1. In no event shall City be able to
modify the franchise to include the different method of calculation of
franchise fee found in the franchise agreement with the other
municipality without this franchise also being modified to include all of
the other provisions identified by Company pursuant to Section 8.13.1.
C. City may not exercise the option provided in Section 8 if any of the
provisions that would be included in this franchise are, in Company's sole opinion,
inconsistent with or in any manner contrary to any then - current rule, regulation,
ordinance, law, Code, or Charter of City.
D. In the event of a regulatory disallowance of the increase in franchise fees
paid pursuant to City's exercise of its option under Section 8, then at any time after the
regulatory authority's entry of an order disallowing recovery of the additional franchise
fee expense in rates, Company shall have the right to cancel the modification of the
franchise made pursuant to Section 8, and the terms of the Franchise shall immediately
revert to those in place prior to City's exercise of its option under Section 8.
E. Notwithstanding any other provision of this franchise, should the City
exercise the option provided in Section 8.13, and then adopt any rule, regulation,
ordinance, law, Code, or Charter of City that, in Company's sole opinion, is inconsistent
with or in any manner contrary to the provisions included in this franchise pursuant to
Section 8.13, then Company shall have the right to cancel all of the modifications to this
franchise made pursuant to Section 8 and, effective as of the date of the City's adoption
of the inconsistent provision, the terms of the franchise shall revert to those in place
prior to the City's exercise of its option under Section 8.
F. The provisions of Section 8 apply only to the amount of the franchise fee
to be paid and do not apply to other franchise fee payment provisions, such as the
timing of such payments. The provisions of Section 8 do not apply to differences in the
franchise fee factor that result from the application of the methodology set out in Section
33.008(b) of PURA or a successor methodology.
SECTION 9: RECORDS AND REPORTS:
A. Company shall keep accurate books of account at its principal office for
the purpose of determining the amount due to the City under this Franchise.
B. Company shall provide City with a report notifying the City of the basis
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period for which the quarterly payment was made, the Total kWh in that basis period,
the factor and the payment amount. This report may take the form of a letter to the City.
C. Pursuant to Section 33.008(e) of the Texas Utilities Code, the City may
conduct an audit or other inquiry in relation to a payment made by Company less than
two (2) years before the commencement of such audit or inquiry. The City may, if it sees
fit, and upon reasonable notice to the Company, have the books and records of the
Company examined by a representative of the City to ascertain the correctness of the
reports agreed to be filed herein.
D. The Company shall make available to the auditor during the Company's
regular business hours and upon reasonable notice, such personnel and records as the
City may, in its reasonable discretion, request in order to complete such audit, and shall
make no charge to the City therefore.
E. The Company shall assist the City in its review by responding to all
requests for information no later than thirty (30) days after receipt of a request.
F. The City agrees to maintain the confidentiality of any non - public
information obtained from Company to the extent allowed by law if Company identifies
the information as non - public prior to providing the information to City. City shall not be
liable to Company for the release of any information the City is required by law to
release. City shall provide notice to Company of any request for release of non - public
information prior to releasing the information so as to allow Company adequate time to
pursue available remedies for protection. If the City receives a request under the Texas
Public Information Act that includes information Company has identified as Company's
proprietary information, City will notify the Texas Attorney General of the proprietary
nature of the document(s). The City also will provide Company with a copy of this
notification, and thereafter Company is responsible for establishing that an exception
under the Act allows the City to withhold the information.
G. If either party discovers that the Company has either overpaid the City or
failed to pay the entire or correct amount of compensation due the City, the correct
amount shall be mutually determined by the City and Company and shall be paid by the
responsible party within thirty (30) calendar days of such mutual determination. Such
underpayments or overpayments shall include interest as provided for in Section 7.F.
Any overpayment to the City by Company through error or otherwise, will, at the option
of the City, either be refunded by City to Company within thirty (30) days of the mutual
determination or be offset against the next payment due from Company. If the parties
cannot mutually agree on either the underpayment due the City or an overpayment due
the Company, both the City and Company may seek any other rights and remedies
provided by law or in equity. Acceptance by the City or Company of any payment due
under this Section shall not be deemed to be a waiver by the City or Company of any
breach of this Franchise, nor shall the acceptance by the City or Company of any such
payments preclude the City or Company from later establishing that a larger amount
was actually due or from collecting any balance due.
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SECTION 10. TERM:
This Ordinance shall become effective upon Company's written acceptance hereof, said
written acceptance to be filed by Company with the City Secretary within sixty (60) days
after final passage and approval hereof. The right, privilege and franchise granted
hereby shall expire on December 31, 2027 provided that, unless written notice of
cancelation is given by either party hereto to the other not less than sixty (60) days
before the expiration of this franchise agreement, it shall be automatically renewed for
an additional period of six (6) months from such expiration date and shall be
automatically renewed thereafter for like periods until canceled by written notice given
not less than sixty (60) days before the expiration of any such renewal period.
SECTION 11. REPEALER CLAUSE:
This Ordinance shall supersede any and all other franchises granted by the City to
Company its predecessors and assigns, provided the parties agree any claim, action or
complaint by either party that arose under or pursuant to any such previous franchise
ordinance shall be preserved and saved from repeal, subject to all applicable statutes of
limitations.
SECTION 12. DEFAULT, REMEDIES, TERMINATION:
A. Events of Default. The occurrence, at any time during the term of the
Franchise Agreement, of any one or more of the following events, shall constitute an
Event of Default by Company under this Franchise:
1. The failure of Company to pay the franchise fee on or before
the due dates specified herein.
2. Company's material breach or material violation of any
material terms, covenants, representations or warranties contained
herein.
B. Uncured Events of Default.
1. Upon the occurrence of an Event of Default which can be
cured by the immediate payment of money to City or a third party,
Company shall have thirty (30) calendar days from receipt of written
notice from City of an occurrence of such Event of Default to cure
same before City may exercise any of its rights or remedies provided
for in Section 12.C.
2. Upon the occurrence of an Event of Default by Company
which cannot be cured by the immediate payment of money to City or
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a third party, Company shall have sixty (60) calendar days (or such
additional time as may be agreed to by the City) from receipt of written
notice from City of an occurrence of such Event of Default to cure
same before City may exercise any of its rights or remedies provided
for in Section 12.C.
3. If the Event of Default is not cured within the time period
allowed for curing the Event of Default as provided for herein, such
Event of Default shall, without additional notice, become an Uncured
Event of Default, which shall entitle City to exercise the remedies
provided for in Section 12.C.
C. Remedies. The City shall notify the Company in writing of an
alleged Uncured Event of Default as described in Section 12.13, which notice
shall specify the alleged failure with reasonable particularity. The Company
shall, within thirty (30) business days after receipt of such notice or such longer
period of time as the City may specify in such notice, either cure such alleged
failure or in a written response to the City either present facts and arguments in
refuting or defending such alleged failure or state that such alleged failure will be
cured and set forth the method and time schedule for accomplishing such cure.
In the event that such cure is not forthcoming, City shall be entitled to exercise
any and all of the following cumulative remedies:
1. The commencement of an action against Company at law for
monetary damages.
2. The commencement of an action in equity seeking injunctive
relief or the specific performance of any of the provisions that as a
matter of equity, are specifically enforceable.
3. The termination of this Franchise.
D. The rights and remedies of City and Company set forth in this Franchise
Agreement shall be in addition to, and not in limitation of, any other rights and remedies
provided by law or in equity. City and Company understand and intend that such
remedies shall be cumulative to the maximum extent permitted by law and the exercise
by City of any one or more of such remedies shall not preclude the exercise by City, at
the same or different times, of any other such remedies for the same failure to cure.
However, notwithstanding this Section or any other provision of this Franchise, City
shall not recover both liquidated damages and actual damages for the same violation,
breach, or noncompliance, either under this Section or under any other provision of this
Franchise.
E.
Termination. In accordance with
the provisions
of Section 12.C, this
Franchise
may be terminated upon thirty (30)
business days
prior written notice to
Company.
City shall notify Company in writing
at least fifteen
(15) business days in
Page 13 of 16
advance of the City Council meeting at which the question of forfeiture or termination
shall be considered, and Company shall have the right to appear before the City Council
in person or by counsel and raise any objections or defenses Company may have that
are relevant to the proposed forfeiture or termination. The final decision of the City
Council may be appealed to any court or regulatory authority having jurisdiction. Upon
timely appeal by Company of the City Council's decision terminating the Franchise, the
effective date of such termination shall be either when such appeal is withdrawn or an
order upholding the termination becomes final and unappealable. Until the termination
becomes effective the provisions of this Franchise shall remain in effect for all purposes.
The City recognizes Company's right and obligation to provide service in accordance
with the Certificate of Convenience and Necessity authorized by the Public Utility
Commission of Texas in accordance with the Texas Utilities Code.
F. This Franchise Ordinance shall be construed and governed by the laws of
the State of Texas. City and Company agree that any lawsuit between the City and the
Company concerning this Ordinance will be filed in the state of Texas. Nothing in this
Ordinance shall prohibit the City from filing an action related to this Ordinance in Parker
County, Texas.
SECTION 13. NOTICES:
Notices, reports or demands required to be given under this franchise shall be deemed
to be given when delivered in writing, personally to the person designated below, or
when five days have elapsed after it is deposited in the United States Mail with
registered or certified mail postage prepaid to the person designated below, or on the
next business day if sent by Express Mail or overnight air courier addressed to the
person designated below:
If to City:
City Manager
City of Kennedale, Texas
405 Municipal Drive
Kennedale, Texas 76060
If to the Company:
Regulatory Affairs
Oncor Electric Delivery Company LLC
1616 Woodall Rodgers Fwy, 6 th floor
Dallas, Texas 75202 -1234
SECTION 14. SEVERABILITY:
If any section, subsection, sentence, clause, phrase or portion of this ordinance is for
any reason held invalid or unconstitutional by any court or agency of competent
jurisdiction, such portion shall be deemed a separate provision and such holding shall
not affect the validity of the remaining portions of the ordinance.
Page 14 of 16
SECTION 15. ASSIGNMENT:
The rights granted by this Franchise Agreement inure to the benefit of the Company and
any parent, subsidiary, affiliate or successor entity now or hereafter existing. The rights
shall not be assignable without the express written consent, by Ordinance, of the City
Council of the City, unless otherwise superseded by state laws, rules, or regulations or
Public Utility Commission of Texas action, and such consent by City shall not be
unreasonably withheld or delayed, except the Company may assign its rights under this
Franchise Agreement to a parent, subsidiary, affiliate or successor entity without the
City's consent, so long as such parent, subsidiary, affiliate or successor assumes all
obligations of Company hereunder, and is bound to the same extent as Company
hereunder. The Company shall give the City written notice of any such assignment to a
parent, subsidiary, affiliate or successor entity.
PASSED AND APPROVED ON FIRST AND FINAL READING ON THIS 12TH
DAY OF DECEMBER, 2013.
(U � f-&—
M OR John Clark
City of Kennedale
ATTEST:
A 4AJ 9, 4-e� -
CITY SECR ARY Amethyst G. Sloane
City of Kennedale
APPROVED AS TO FORM AND LEGALITY:
L� k 0,e
��� OF KEIVNF ,
City Attorney Wayne R Olson
S7s co
9
Date:
s-*111Q0' N ►,``��
Page 15 of 16
STATE OF TEXAS §
COUNTY OF TARRANT §
CITY OF KENNEDALE §
I, r G , s I0cw , City Secretary of Kennedale,
Tarrant County, Texas, do hereby certify that the above and foregoing is a true and
correct copy of an ordinance passed and approved by the City Council of Kennedale,
Texas, at a regular session, held on the 12th day of December, 2013.
WITNESS MY HAND AND SEAL OF KENNEDALE, this the 12th day of
December, 2013.
/ 6/ G.
��•� ,�ENNEOq �i, Amethyst G. SI ane
•'' ° ° "• ° " ° °• lF City Secretary
Kennedale, Texas
_ s
gN iii s
Page 16 of 16