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2016-032 - Third and final reading – Ordinance granting to Oncor Electric Company, LLC, its Successors and Assigns, an Electric Delivery Franchise for the Non-Exclusive Right to...ORDINANCE NO. 2016 -032 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PARIS, TEXAS, GRANTING TO ONCOR ELECTRIC DELIVERY COMPANY LLC, ITS SUCCESSORS AND ASSIGNS, AN ELECTRIC DELIVERY FRANCHISE FOR THE NON - EXCLUSIVE RIGHT TO USE AND OCCUPY PUBLIC RIGHTS -OF -WAY WITHIN THE CITY OF PARIS 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 THEREFOR; PROVIDING FOR AN EFFECTIVE DATE AND A TERM OF SAID FRANCHISE; PROVIDING FOR WRITTEN ACCEPTANCE OF THIS FRANCHISE; PROVIDING FOR THE REPEAL OF ALL EXISTING FRANCHISE ORDINANCES TO ONCOR ELECTRIC DELIVERY COMPANY LLC, ITS PREDECESSORS AND ASSIGNS, AND FINDING THAT THE MEETING AT WHICH THIS FRANCHISE IS PASSED IS OPEN TO THE PUBLIC; AND PROVIDING FOR SEVERABILITY. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF PARIS, TEXAS, THAT: SECTION 1. GRANT OF AUTHORITY. There is hereby granted to Oncor Electric Delivery Company LLC, its successors and assigns (herein called "Company "), the right, privilege and franchise ( "Franchise ") to construct, extend, maintain and operate in, along, under and across the present and future streets, alleys, highways, public utility easements and public ways and other public property ( "Public Rights -of- Way") of the City of Paris, Texas (herein called "City ") 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 Company's own use), (herein called "Facilities ") 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 11. SECTION 2. PURPOSE. Company's poles, towers and other structures shall be so erected as not to unreasonably interfere with traffic over City's Public Rights -of -Way. SECTION 3. OPERATION, CONSTRUCTION AND MAINTENANCE OF ELECTRIC DISTRIBUTION AND TRANSMISSION 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, 1 cable, fiber optic cable, roadways, sidewalks, alleys, traffic control devices, public signs, or any other publicly owned or publicly franchised facility. B. Company's placement of new facilities in the Public Rights -of -Way shall be subject to the approval of the City Manager or designee; provided, however, said approval shall not be unreasonably withheld. In determining the location of the Company's new facilities within the City's Public Rights -of -Way, the Company shall notify the City in writing of proposed sites for said new facilities, and the Company shall minimize interferences with then - existing or documented planned underground structures (provided to Company in writing) of the City or with the existing facilities of other existing authorized users of the Public Rights -of -Way. In determining the location of the facilities of the City and other utility franchisees and other authorized users of the Public- Rights -of -Way within the City, the City shall minimize the interference with existing facilities of the Company and shall require other utility franchisees or authorized users of the Public- Rights -of -Way to minimize interference with existing facilities of the Company. Company has the right to request review of any City action by City Council and /or any court or regulatory agency having jurisdiction. C. Company and contractors working on behalf of Company shall construct its facilities in conformance with the applicable provisions of the National Electrical Safety Code (NESC) or such comparable standards as may be adopted that replace the NESC. D. Company shall cooperate with the City by providing available information regarding the location of current and future overhead and underground primary lines and poles within the Public Rights -of -Way. Reproducible copies of available maps showing the location of overhead and underground primary lines and poles of the Company within the Public Rights -of- Way shall be furnished to the City Community Development Department upon request. The maps shall be provided in electronic digital format, if available. E. In connection with work done by Company, the public shall be protected by barriers and lights placed, erected, marked and maintained by the Company in accordance with standards set forth in the current Texas Manual on Uniform Traffic Control Devices (TMUTCD), 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 maximum period of two (2) years, to the extent that such restoration work has not been disturbed by other users of the Public Rights -of -Way. 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 immediately prior to being disturbed by Company's construction, excavation, repair or removal or to a condition agreed upon by City and Company. If City or Company believe that 2 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 immediately prior to being disturbed by Company, City and Company will negotiate an alternative restoration plan (in writing) to remedy the situation. Absent an agreement to an alternative restoration plan, either party has a right to request review of the matter by any court or regulatory agency having jurisdiction. Company or contractors working on behalf of Company conducting any work in the City Public Rights -of -Way may be required to file for a City permit (if required by City Ordinance), excluding permits for i) repairs ii) day to day maintenance or iii) in cases of emergency conditions, issued by the City prior to commencement of work. In no instance shall Company be required to pay tees or bonds related to its use of the Public Rights -of -Way, despite the City's enactment of any ordinance providing the contrary. 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 harmless against any and all liability arising from suits, actions or claims regarding injury or death 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 Company or any of its officers, agents, or employees in connection with Company's construction, maintenance and operation of Company's system in the City Public Rights -of -Way, including any court costs, reasonable expenses and reasonable 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 or 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 Company and the City. C. In the event of joint and concurrent negligence or fault of both 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 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. 3 D. In fulfilling its obligation to defend and indemnify City, Company shall have the right to select defense counsel, subject to City's approval, which will not be unreasonably withheld. Company shall retain defense counsel within seven (7) business days of City's written notice that City is invoking its right to indemnification under this franchise. If Company fails to retain counsel within such time period, City shall have the right to retain defense counsel on its own behalf, and Company shall be liable for all reasonable defense costs incurred by City, except as otherwise provided in section 4.13 and 4.C. SECTION 5. LIABILITY INSURANCE. Company shall, at its sole cost and expense, obtain, maintain, or cause to be maintained, and provide, throughout the term of this Franchise, insurance in the amounts, types and coverage's 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, and volunteers, as an additional insured under the coverage required herein, 4 except Worker's Compensation Coverage. The certificate of insurance must state that the City is an additional insured. E. Company will require its contractors and subcontractors to maintain, at their sole cost and expense, a minimum of three million dollars ($3,000,000) each occurrence or each accident general liability and automobile liability throughout the course of work performed. Also, contractors and subcontractors will be required to maintain statutory workers' compensation benefits in accordance with the regulations of the State of Texas or state of jurisdiction as applicable. The minimum limits for employers' liability insurance will be five hundred thousand dollars ($500,000) bodily injury each accident, five hundred thousand dollars ($500,000) each employee bodily injury by disease, five hundred thousand dollars ($500,000) policy limit bodily injury by disease. The Company will provide proof of its insurance in accordance with this Franchise within 30 days of the effective date of the Franchise and annually thereafter. Company will not be required to furnish separate proof when applying for permits. 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. 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: 5 A. A final quarterly payment has been made on or before September 10, 2016 for the privilege period of July 1, 2017 through September 30, 2017 in accordance with the provisions in the previous franchise. B. As authorized by Section 33.008(b) of PURA, the original franchise fee factor calculated for the City in 2002 was 0.002407 (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 0.002527 (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 quarterly basis. However, consistent with the 2006 agreement, should the Public Utility Commission of Texas at any time 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 0.002407 and all future payments, irrespective of the time period that is covered by the payment, will be made using the Base Factor. Payments to the City shall be made per the quarterly schedule as follows: Payment Due Date December 10 March 10 June 10 September 10 Basis Period Jul. 1 — Sept. 30 Oct. 1 — Dec. 31 Jan. 1 — Mar. 31 Apr. 1 — Jun. 30 Privilege Period (Following Year) Oct. 1 — Dec. 31 Jan. 1 — Mar. 31 Apr. 1 — Jun. 30 Jul. 1 — Sept. 30 (1.) The first quarterly payment hereunder shall be due and payable on or before December 10, 2016, and will cover the basis period of July 1, 2016 through September 30, 2016 and the privilege period of October 1, 2017 through December 31, 2017. 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 3 Franchise is due on or before September 10, 2036 and covers the basis period of April 1, 2036 through June 30, 2036 and the privilege period of July 1, 2037 through September 30, 2037. (2.) After the final payment date of September 10, 2036, Company may continue to make additional quarterly 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 as full payment for the relevant quarterly periods. C. 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 Oncor's Tariff for Retail Delivery Service (Tariff), effective 1/1/2002, that are for the account and benefit of an end -use retail electric consumer. Company will, upon request by City, provide a cross reference to Discretionary Service Charge numbering changes that are contained in Company's current approved Tariff. (1.) The franchise fee amounts based on "Discretionary Service Charges" shall be calculated on an annual calendar year basis, i.e. from January 1 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 7C, received during the preceding calendar year. The initial Discretionary Service Charge franchise fee amount will be paid on or before April 30, 2017 and will be based on the calendar year January 1 through December 31, 2016. The final Discretionary Service Charge franchise fee amount will be paid on or before April 20, 2038 and will be based on the calendar months of January 1, 2037 through September 30, 2037. (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 7 intervened, the City will take an affirmative position in any such appeals in support of the 100% recovery of such franchise fees by Company. (5.) City agrees that it will take no action, nor cause any other person or entity to take any action, to prohibit the recovery of such franchise fees by Company. (6.) In the event of a regulatory disallowance of the recovery of the franchise fees on the Discretionary Service Charges, Company will not be required to continue payment of such franchise fees. D. With each payment of compensation required by Section 7.6, Company shall furnish to the City a statement, executed by an authorized officer of Company or designee, providing the total kWh delivered by Company to each retail customer's point of delivery within the City and the amount of payment for the period covered by the payment. E. With each payment of compensation required by Section 7.C, Company shall furnish to the City a statement, executed by an authorized officer of Company or designee, reflecting the total amount of gross revenues received by Company from services identified in its "Tariff for Retail Delivery Service," Section 6.1.2, "Discretionary Service Charges," Items DD1 through DD24. F. 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 Company overpayment to the City through error or otherwise will, at the sole option of the City, either be refunded within thirty (30) days after the overpayment was determined or offset against the next payment due from Company. 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 Agreement, 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 to the City or Company. G. Interest on late payments shall be calculated in accordance with the interest rate for customer deposits established by the Public Utility Commission of Texas in accordance with Texas Utilities Code Section 183.003 as amended for the time period involved. SECTION 8. ACCOUNTING MATTERS. 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. s B. Pursuant to Section 33.008(e) of the Texas Utilities Code, the City may conduct an audit or other inquiry in relation to a payment made by Company less than two (2) years before the commencement of such audit or inquiry. The City may, if it sees fit, 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. C. The Company shall make available to the auditor during the Company's regular business hours and upon reasonable notice, such personnel and records as the City may, in its reasonable discretion, request in order to complete such audit, and shall make no charge to the City therefore. (1.) If as the result of any City audit, Company is refunded /credited for an overpayment or pays the City for an underpayment of the franchise fee, such refund /credit or payment shall be made pursuant to the terms established in Sections 7.F. and 7.G. (2.) If as a result of a subsequent audit, initiated within two years of an audit which resulted in Company making a payment to the City due to an underpayment of the franchise fee of more than 5 %, Company makes another payment to the City due to an underpayment of the franchise fee of more than 5 %, the City may immediately treat this underpayment as an Uncured Event of Default and exercise the remedies provided for in Section 12.C. D. The Company shall assist the City in its review by responding to all requests for information no later than thirty (30) days after receipt of a request. E. The City agrees to maintain the confidentiality of any non - public information obtained from Company to the extent allowed by law if Company identifies the information as non - public prior to providing the information to the City. City shall not be liable to Company for the release of any information the City is required to release by law. 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 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 Texas Public Information Act allows the City to withhold the information. 7 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 in writing 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 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 the Texas Public Utility Regulatory Act (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. 10 B. If the City requires the Company to adapt or conform its Facilities, or in any manner to alter, relocate, or change its Facilities to enable any other corporation or person to use, or use with greater convenience, said street, alley, highway, or public way, the Company shall not be bound to make such modification 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. C. 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 11. TERM. This Franchise shall become effective on the 61 st day after its adoption on third and final reading by the City of Paris, City Council, provided that the Company provide written acceptance under a separate acceptance document, said written acceptance to be filed by Company with the City within sixty (60) days after final passage and approval hereof. The right, privilege and franchise granted hereby shall expire on September 30, 2037; 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. 11 SECTION 12. DEFAULT, REMEDIES AND 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 Agreement: (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, 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, 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: 12 (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. Remedies. 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 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 12.C, this Franchise Agreement may be terminated upon thirty (30) business day's prior written notice to Company by City. City shall notify Company in writing at least fifteen (15) business days in advance of the City Council meeting at which the question of forfeiture or termination shall be considered, and Company shall have the right to appear before the City Council in person or by counsel and raise any objections or defenses Company may have that are relevant to the proposed forfeiture or termination. The final decision of the City Council may be appealed to any court or regulatory authority having jurisdiction. Upon timely appeal by Company of the City Council's decision terminating the Franchise, the effective date of such termination shall be either when such appeal is withdrawn or an order upholding the termination becomes final and unappealable. Until the termination becomes effective, the provisions of this Franchise shall remain in effect for all purposes. The City recognizes Company's right and obligation to provide service in accordance with the Certificate of Convenience and Necessity authorized by the Public Utility Commission in accordance with the Texas Utilities Code. F. The failure of the City or Company 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 13 have been made by the City or Company unless said waiver or relinquishment is in writing and signed by the City or Company. SECTION 13. PUBLIC PURPOSE. All of the provisions contained in this Franchise 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 14. SEVERABILITY. If any provision, section, subsection, sentence, clause or phrase of this Franchise is for any reason held to be unconstitutional, void or invalid (or for any reason unenforceable), the validity of the remaining portions of this Franchise shall not be affected thereby, it being the intent of the parties in adopting this Franchise 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 Franchise are declared to be severable. SECTION 15. NOTICE. Any notices required or desired to be given from one party to the other party to this Franchise shall be in writing and shall be given and shall be deemed to have been served and received if (i) delivered in person to the address set forth below; (ii) deposited in an official depository under the regular care and custody of the United States Postal Service located within the confines of the United States of America and sent by certified mail, return receipt requested, and addressed to such party at the address hereinafter specified; or (iii) delivered to such party by courier receipted delivery. Either party may designate another address within the confines of the continental United States of America for notice, but until written notice of such change is actually received by the other party, the last address of such party designated for notice shall remain such party's address for notice. CITY COMPANY City Manager Oncor Electric Delivery Company LLC City of Paris Regulatory Affairs P.O. Box 9037 1616 Woodall Rodgers, 6th floor Paris, TX 75460 Dallas, TX 75202 14 SECTION 16. ACCEPTANCE. In order to accept this Franchise, Company must file with the City Secretary its written acceptance of this Franchise within sixty (60) days after its final passage and approval by City. SECTION 17. FUTURE AMENDMENTS. This Franchise may be amended only by the mutual written agreement of the City and the Company. SECTION 18. FRANCHISE PASSED AT PUBLIC MEETING. It is hereby officially found that the meeting at which this Franchise is passed is open to the public and that due notice of this meeting was posted by City, all as required by law. SECTION 19. REPEAL. This Franchise shall supersede any and all other franchises granted by the City to Company, its predecessors and assigns. SECTION 20. READINGS. PASSED AND APPROVED ON FIRST PUBLIC READING CONDUCTED at a regular meeting of the City Council of Paris, Texas, on this the 26th day of September, 2016. PASSED AND APPROVED ON SECOND PUBLIC READING CONDUCTED at a regular meeting of the City Council of Paris, Texas on this the 10th day of October, 2016. FINALLY PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF PARIS, BY A VOTE OF 7 TO 0 , ON THIS THE 24th DAY OF October, 2016. APPROVED: Lc� A.J. Hashmi, M.D. a 15 ATTEST: ice Ellis, City Clerk APPROVED AS TO FORM: e H. Harris, City Attorney 16