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97-041 ORD GRANTING TEXAS UTILITIES ELECTRIC COMPANY FRANCHISE FOR PURPOSE OF CONSTRUCTING, ERECTING AND MAINTAINING ITS POLES TOWERS WIRES ANCHORS ETC ORDINANCE NO. 97-041 AN ORDINANCE OF THE CITY OF PARIS, PARIS, TEXAS, GRANTING TEXAS UTILITIES ELECTRIC COMPANY AN ELECTRIC LIGHT, HEAT, AND POWER FRANCHISE FOR THE PURPOSE OF CONSTRUCTING, ERECTING, AND MAINTAINING ITS POLES, TOWERS, WIRES, ANCHORS, CABLES, MANHOLES, CONDUITS, AND OTHER STRUCTURES AND APPURTENANCES ALONG, ACROSS, ON, OVER, THROUGH, ABOVE, AND UNDER ALL PUBLIC STREETS, THOROUGHFARES, ALLEYS, AND PUBLIC GROUNDS AND PLACES IN SAID CITY; PRESCRIBING THE CONSIDERATION THEREFOR; PROVIDING FOR THE RIGHT TO USE CERTAIN FACILITIES OF THE ELECTRIC COMPANY; PRESCRIBING THE TERM AND EFFECTIVE DATE OF SAID FRANCHISE; PROVIDING FOR THE REPEAL OF ALL CONFLICTING ORDINANCES; PROVIDING THAT THIS ORDINANCE BE CUMULATIVE; PROVIDING FOR SEVERABILITY; PROVIDING FOR GOVERNMENTAL IMMUNITY; PROVIDING FOR INJUNCTIONS; PROVIDING FOR PUBLICATION; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Texas Utilities Electric Company, a Texas corporation, hereinafter referred to as the "Company," is now and has been engaged in the business of furnishing electricity in the state of Texas and, in furtherance thereof, has erected and maintained certain items of its electric power utility system in the city of Paris, Texas, pursuant to such rights as have been granted it by and under said laws of the State of Texas, and subject to the exercise of such reasonable rights of regulation under the police powers as have been also lawfully granted by and under said laws to the City of Paris, Paris, Texas, hereinafter referred to as the "City;" and, WHEREAS, it is to the mutual advantage of both the City and the Company that a franchise should be granted the Company by the City, establishing the conditions under which the Company shall operate in the City; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF PARIS, PARIS, TEXAS: Section l.a. General There is hereby granted to the Company the right, privilege, and franchise to maintain and operate an electric power utility system which includes, but is not limited to, electric light, heat, power, and energy facilities and a generation, transmission, and distribution system with such extensions thereof and additions thereto as shall hereafter be made, within the corporate limits of the City, and in connection therewith to construct, extend, maintain, use, and operate in, along, under, on, over, through, above, and across the present and future public streets, thoroughfares, rights-of- way, alleys, sidewalks, bikeways, easements, and other public grounds and public places of the City, during the term hereof, its lines, poles, towers, wires, anchors, cables, manholes, conduits, and other structures and appurtenances in connection with such electric power utility system. Section l.b. Definitions The terms and phrases used herein and not otherwise defined shall have the meanings and usage generally accepted. Section 2. Construction Work - Regulation by City (a) Work done in connection with the construction, reconstruction, maintenance, or repair of the utility system shall be subject to and governed by all valid and enforceable laws, rules, and regulations of the City and the State of Texas. The governing body of the City may require Company, from time to time, to place certain facilities underground. If the governing body of the City so requires, adequate provision shall be made to compensate Company for the increased costs involved. 1 (b) In accordance with direction given by the authority of the governing body under the police and regulatory powers of the City, the placement of poles and excavations and other construction in the streets, thoroughfares, alleys, and other public rights-of-way shall interfere as little as practicable with the use of the streets, thoroughfares, sidewalks, and alleys. Section 3. Construction and Maintenance: Excavation (a) The construction, maintenance, and operation of Company's electric power utility system and property of Company subject to this franchise shall be subject to lawful police regulations of the governing body of the City. The City shall have power at any time to order and require Company to remove and abate any pole, wire, cable, or other structure that is unnecessarily dangerous to life or property, and in case Company, after notice, fails or refuses to act within a reasonable time, the City shall have the power to remove or abate the same at the expense of the Company, all without compensation or liability for damages to Company. Company shall promptly restore to as good condition as before working thereon, and to the reasonable satisfaction of the City, all streets, alleys, and public rights-of-way excavated by it. Engineering plans of those projects involving significant construction in public rights-of-way shall be submitted to the City, prior to construction, for review. (b) Except in an emergency, the Company shall comply with applicable City ordinances and rules pertaining to notification when excavating pavement in any alley, street, or paved public right- of-way. The City shall be notified as soon as practicable regarding work performed under emergency conditions, and Company shall comply with the City's reasonable requirements for restoration of the excavated area. Section 4. Joint Use of Poles, Trenches, and Conduits (a) The Company may be required to attach its wires to poles owned and maintained by City or another franchisee of the City, or to permit the wires of City or such other franchisee, to be attached to the poles owned and maintained by the Company, upon reasonable terms and for just compensation. In the event that Company and such other franchisee are unable to agree on terms and compensation, or if the same are not otherwise resolved or determined within a reasonable time, the City, after due notice and a hearing, may prescribe terms and set compensation. The Company may require such other franchisee to furnish evidence of adequate insurance and provide indemnity covering the City, in the event of another franchisee, and the Company and adequate bonds covering the performance of such other franchisee attaching to the Company' s poles as a condition precedent to giving permission to such other franchisee to attach wires to Company's poles. Company's requirement for such insurance and indemnity must be reasonable. (b) Wires shall be located on poles in compliance with applicable safety standards and shall not interfere with the erection, replacement, operation, repair, or maintenance of the wires and appurtenances of City or other franchisees of the City occupying the poles. Company shall not be required to attach its wires to the poles of another franchisee of the City or to permit the wires of another franchisee of the City to be attached to Company's poles if it can be satisfactorily shown that Company will be subjected to increased risks of interruption of service or liability for accidents, or if the poles, wires, and appurtenances of such other franchisee are not of the character, design, and construction required by or are not being maintained in accordance with modern practice, or if sufficient clearance or space is not available on the pole. (c) Company may be required by City to share trench space for cables or ducts with City or another franchisee of the City far the placement of cables or wires underground. Compensation to the Company, as well as terms of sharing trench space, shall be resolved as provided in subsection (a) of this section. Also, City and Company may require insurance and indemnification as provided in subsection (a). Ducts, cables, or wires shall be placed in trenches in compliance with applicable safety standards and in a manner that does not interfere with Company's cables or wires, as provided in subsection (b). 2 Section 5. Underground Conduits and Poles - Use by City (a) If Company shall, from time to time, have spare ducts in its underground conduits or spare pins, cross-arms, or space on any of its poles not then necessary in the conduct of its business, it shall permit the City to use one such duct in each conduit or reasonable space on poles, or both, for the City's police and fire alarm wires, traffic control wire or cable, fiber optic lines connecting Ciry facilities or other similar, appropriate, non-commercial, governmental use. If Company shall construct or extend additional conduits or erect additional poles, the governing body of the City may require the Company to provide one such duct in each conduit, or reasonable space on poles, or both, for the City's own use as aforesaid. In either event, the City shall pay Company a fair rental therefor. (b) Company shall cooperate with the City at all times by providing timely and complete information regarding the location of conduits and poles, as needed by the City in connection with the City's planning and construction, along with such maps, plats, construction documents, and drawings as may exist or be created from time to time. Company and City shall cooperate and coordinate their efforts to make the most efficient and economical use of facilities. (c) City shall not sell, lease, or otherwise make available its rights to use Company's facilities to any third party for commercial purposes. Such rights are provided solely for the non-commercial, governmental use by the City. However, this restriction shall not prevent the City from using the services of a third party commercial entity to manage or operate the City's facilities on behalf of the City, so long as no resale or other commercial use of such facilities shall occur. (d) Company is not authorized to license or lease to any person or entity the right to occupy or use the City's rights-of-way for the conduct of any private business. Section 6.a. Conformance with Public Improvements Whenever by reason of the widening or straightening of a street, it shall be deemed necessary by the governing body of the City to remove, alter, change, adapt, or conform the underground or overhead facilities of Company located in the public right-of-way, such alterations or changes shall be made as soon as practicable by Company when ordered in writing by the City, without claim for reimbursement or damages against the City, upon the City's furnishing another right-of-way along said street; provided, however, if said requirements impose a financial hardship upon the Company, the Company shall have the right to present alternative proposals for the City's consideration. Section 6.b. Supervision by City of Location of Poles and Conduit All poles, towers, stubs, guys, anchors, and other above-ground facilities to be hereafter placed shall be set so that they shall not unreasonably interfere with the flow of water in any gutter or drain, and so that the same shall not unreasonably interfere with ordinary travel on the streets and alleys, and so that the same shall interfere as little as reasonably practical with ordinary travel on sidewalks and bikeways, and so that they shall not unreasonably compromise public safety at public street intersections. The City herein reserves the right to require the Company to install future above-ground facilities as far from the vehicular travel lanes as reasonably practical for traffic safety and fire protection. Section 7. 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, and to do and permit to be done any underground or overhead wark that may be necessary or proper in, across, along, over, or under a street, thoroughfare, alley, highway, or public way occupied by the Company. The City also reserves the right to change, in any manner, any curb, sidewalk, highway, alley, public way, or street. In permitting such work to be done by an independent contractor, the City shall not be liable to the 3 Company for any damage so occasioned, except as provided in Section 21 hereof; provided that nothing herein shall relieve any other person ar corporation from responsibility for damages to the facilities of Company. (b) In the event that the governing body of the City authorizes someone other than the Company to occupy space above or under the surface of a street, thoroughfare, alley, highway, or public way, such grant shall be subject to the rights herein granted or heretofore obtained by the Company. In the event that the governing body of the City shall close or abandon any street, thoroughfare, alley, highway, or public way which contains existing facilities of the Company, any conveyance of land within such closed or abandoned street, thoroughfare, alley, highway, or public way shall be subject to the rights herein granted or heretofore obtained by Company. Provided, that the Company may be ordered to vacate any land so conveyed if an alternate route is practicable and if the Company is reimbursed by the person to whom the property is conveyed for the reasonable costs of removal and relocation of facilities. (c) If the City shall require Company to adapt or conform its facilities, or in any way or manner to alter, relocate, or change its property to enable any other corporation or person, except the Ciry, to use, or use with greater convenience, said street, thoroughfare, alley, highway, ar public way, Company shall not be bound to make any such changes until such other corporation or person shall have undertaken, with good and sufficient bond, to reimburse the Company for any cost, loss, or expense which will be caused by or arise out of such change, alteration, or relocation of Company's property; provided, however, that the City shall never be liable for such reimbursement due to Company from such other corporation or person. Section 8. Temporary Removal of Wires The Company, upon the request of any person, shall remove, raise, or lower its wires temporarily to permit the moving of houses or other bulky structures. The expense of such temporary removal, raising, or lowering of wires shall be paid by the benefitted party or parties, and the Company may require sucll payment in advance. The Company shall be given not less than ten (10) days advance notice to arrange for such temporary wire changes. Section 9. Tree Trimming The Company is hereby granted the right, license, privilege, and permission to trim trees upon and overhanging the streets, thoroughfares, alleys, sidewalks, bikeways, easements and other public grounds and public places of the City, so as to prevent the branches of such trees from coming in contact with the wires or cables of the Company. Section 10. Director of Finance (a) The Director of Finance is the principal City officer responsible for the administration of this franchise and shall oversee and review the operations of Company under this franchise. (b) The City may delegate to the Director of Finance, or his representative, the exercise of any of the powers conferred upon the City by its charter or by law relating to the supervising and regulating of Company in the exercise of the rights and privileges herein conferred, but the governing body of the City reserves unto itself exclusively the power to fix and regulate the general charges and rates of Company, to the full extent that such power is provided in the charter, this franchise, and state law. (c) It shall be the right and duty of the Director, or his representative, and the governing body of the City at all times to keep fully informed as to all matters in connection with or affecting the construction, reconstruction, maintenance, operation, and repair of the properties of the Company and its accounting methods and procedures in connection therewith, and the conduct of the Company's business in the City and of service being rendered by Company. 4 Section 11. Availability, Character of Service Company shall, at all times, funush service which is modern and sufficient to meet reasonable demands without undue interruption or fluctuations, under fair and reasonable rules and regulations as provided for herein, to any person, firm, or corporation that shall demand service within the City, upon the terms herein specified or that hereafter may be specified and required by ordinance or rules duly passed by the City, which shall be incorporated by Company into its tariff and not be inconsistent with state and federal law. Company shall make service connections on reasonable demand, without undue delay. Company covenants that it will furnish such service, instrumentalities, and facilities as are safe, adequate, efficient, and reasonable. Notwithstanding anything herein to the contrary, this section is not intended to create or grant any rights, contractual or otherwise, to any person, firm, or corporation demanding service within the City, but that the City shall have the sole right of enforcement of this section. Section 12. Service Rates (a) The governing body hereby expressly reserves the right, power, and authority to fully regulate and fix the rates and charges for the services of the Company to its customers, fully reserving to the governing body all the rights, powers, privileges, and immunities, subject to the duties and responsibilities which the constitution, the laws of the state, and the charter confer upon the City. (b) Company may, from time to time, propose changes in its general rates by filing an application with the City Clerk for consideration of the governing body. Within a reasonable time consistent with law, the governing body shall afford Company a fair hearing with reference to the application and shall either approve or disapprove the proposed changes or make such order as may be reasonable. (c) In order to ascertain any and all facts, the governing body shall have full power and authority to inspect, or cause to be inspected, the books of Company, and to inventory and appraise, or cause to be inventoried and appraised, the property of Company, and to compel the attendance of witnesses and the production of books and records, and to prescribe penalties for the failure or refusal of Company to testify or produce books and records as required. (d) The City shall not allow as to rates or services an unreasonable preference or advantage to anyone within a service classification, nor allow Company to subject anyone within a service classification to any unreasonable prejudice or discrimination. Distinctions in rates and services between locations and service classifications shall be reasonable and shall be approved by the City. (e) To the extent required by state law, the governing body of the City may require the Company to allocate costs of facilities, revenues, expenses, taxes, and reserves between the City and other municipalities or unincorporated areas. Section 13. Deposits Company shall have the right, subject to such rules and regulations as set forth in its approved tariff and consistent with applicable state or federal law, to require a reasonable security deposit for the payment of bills. Section 14. Suspension of Services Subject to state, federal, and local laws, rules, and regulations, the Company shall have the right to discontinue or suspend service to any customer who fails to pay a bill presented for service or make a reasonable deposit as may be required, until such bill, together with any expense for disconnecting and reconnecting the service, is paid. In addition, the Company may discontinue or suspend service without notice, for as long as the condition exists, where a known dangerous condition exists. The Company shall not be required to furnish service to any customer who is in default of payment or who fails to pay a reasonable deposit in accordance with duly promulgated rules and regulations, or who shall fail to comply with rules and regulations regarding proper use of 5 facilities furnished by the Company. Provided, however, that nothing herein shall authorize Company to discontinue, suspend, or refuse to furnish service where Company is otherwise legally prohibited from taking such action. Section 15. Records, Reports, and Inspections (a) The Company shall use the system of accounts and the forms of books, accounts, records, and memoranda prescribed by the Public Utility Commission of Texas, or as mutually agreed to by the City and Company. Should the Public Utility Commission of Texas cease to exist, the City retains the right to require the Company to maintain a system of accounts and forms of books and accounts and memoranda prescribed either by the Federal Energy Regulatory Commission or the National Association of Regulatory Utility Commissioners or the successor of either of these organizations as mutually agreed to by the City and Company. (b) Upon the City's request, Company will promptly advise the City of the nature, content, and purpose of any financial and operating report it makes to the Public Utility Commission of Texas, the Railroad Commission of Texas, the Federal Energy Regulatory Commission, and the Securities and Exchange Commission. Company will promptly provide copies of any or all of these reports and such special studies as the Director of Finance, or his representative, and the governing body of the City may reasonably require in the administration of this franchise. (c) The Director of Finance, or his representative, shall have the right, at reasonable times, to inspect the plant, equipment, and other property of the Company and its affiliates, according to state law, and to examine, audit, and obtain copies of the papers, books, accounts, documents, and other business records of the Company and its affiliates consistent with state law. (d) The City shall retain all of the investigative powers and other rights provided to the City by the charter and state law. Section 16. Rules and Regulations (a) In order to insure uniform and reasonable application of conditions for service and to insure availability of service to all without discrimination, the City may exercise supervision of Company's rules and regulations concerning service furnished under this franchise in accordance with state law. (b) The governing body of the City may establish, after reasonable notice and hearing, such rules and regulations as may be in the public interest regarding rates, the furnishing of service, administration of customer accounts, and construction of Company facilities on City property. Section 17. Cash Consideration to be Paid by the Company (a) 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 streets, thoroughfares, alleys, highways, and public grounds and ways, and in lieu of any and all occupation taxes, assessments, municipal charges, fees, easement taxes, franchise taxes, license and inspection fees or charges, street taxes, street or alley rentals, certain regulatory expenses under Section 2.106 (a) of the Public Utility Regulatory Act of 1995, or any similar or successor law, 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 Ciry is authorized to levy and impose upon real and personal property, sales and use taxes, and special assessments for public improvements, the Company shall pay to the City, on a quarterly basis during the term hereof, a sum of money equal to four percent (4%) of its quarterly gross receipts received by the Company from the retail sale of electric power and energy within the corporate limits of the City. The first payment hereunder shall be due and payable on or before January l, 1998, and shall be based upon the Company's said gross receipts received during the three-month period ended the prior November 30 and shall be payment for the rights and privileges granted hereunder during the said three-month period. Subsequent payments shall be due and payable quarterly thereafter on or before the first day of the second month following the end of 6 the three-month period upon which said payment is based and shall be payment for the rights and privileges granted hereunder for the said three-month period, that the quarterly payments shall be as follows: Payinent Quarter Upon Which Quarter For Which Due Date Pavment Is Based Payment Is Made Jan. l Sept. 1- Nov. 30 Sept. 1- Nov. 30 April l Dec. 1- Feb. 28 or 29 Dec. 1- Feb. 28 or 29 July 1 March 1- May 31 March 1- May 31 Oct. 1 June 1- August 31 June 1- August 31 Each such payment shall be accompanied with a report showing the gross receipts as aforesaid for the said three-month period upon which payment is based. (b) Notwithstanding anything to the contrary in Section 17(a) hereof, if the Company files general rate cases and the City incurs cumulative expenses, otherwise reimbursable by the Company under Section 2.106 (a) of the Public Utility Regulatory Act of 1995, or a similar or successor law, in excess of $4 million, then, in such event, the Company shall reimburse all of the expenses incurred by the City in connection with a11 general rate cases filed during the period beginning June l, 1993, and ending September 30, 2008, in excess of said $4 million. The term "general rate case" as used in this Ordinance means a rate case initiated by the Company in which it seeks to increase its rates charged to a substantial number of its customer classes in the City and elsewhere in Company's system and in which the Company's overall revenues are determined in setting such rates and includes any appeals and judicial review of orders regarding such rate cases. City agrees to exercise reasonable best efforts, considering the facts and circumstances, to keep its expenses on average to under $1,000,000.00 per general rate case. (c) Notwithstanding the provisions of Section 17(b) hereof, in the event that the City of Dallas incurs cumulative expenses in connection with general rate cases filed by the Company during the period beginning June 1, 1993, and ending September 30, 2008, in excess of $4 million and the Company reimburses the City of Dallas such excess, then, in that event, the Company will reimburse the City of Paris its reasonable expenses actually incurred that are otherwise reimbursable under Section 2.106 (a) of the Public Utility Regulatory Act of 1995, Article 1446c-0, V.A.T.S. (the "PURA") or a similar or successor law, in an amount calculated in accordance with the following formula: a = ([B - $4,000,000] = B) X c where: A= The amount reimbursable to the City of Paris under this franchise. B= The total amount of expenses incurred by the City of Dallas during the period beginning June 1, 1993, and ending September 30, 2008, in connection with general rate cases filed by the Company, which expenses would be reimbursable under Section 2.106 (a) of the PURA or a similar or successor law to the City of Dallas except for the terms of the City of Dallas's franchise, but excluding all such expenses incurred in connection with Public Utility Commission of Texas Dockets Nos. 9300 and 11735; and C= The total amount of expenses incurred by the City of Paris during the period beginning June 1, 1993, and ending September 30, 2008, in connection with general rate cases filed by the Company, which expenses would be reimbursable under Section 2.106 (a) of the PURA or a similar or successor law except for the terms of this franchise, but excluding all such expenses incurred in connection with Public Utility Commission of Texas Dockets Nos. 9300. 7 Such reimbursement of the City of Paris by the Company shall commence after the City of Dallas incurs cumulative expenses in excess of $4 million in general rate cases and shall be made at the times and in the manner provided in Section 2.106 (a) of the Public Utility Regulatory Act of 1995 or a similar or successor law. The provisions of Section 17(c) hereof shall apply until the City of Paris incurs cumulative expenses in excess of $4 million in general rate cases and the provisions of Section 17(b) hereof shall then apply. (d) Notwithstanding the provisions of subsections (b) and (c) hereof, the Company will continue to reimburse the City's rate-making expenses, if any, in connection with the appeal and any remand of Public Utility Commission of Texas Docket No. 9300 that are otherwise reimbursable under Section 2.106 (a) of the Public Utility Regulatory Act of 1995 or similar or successor law, and will continue to reimburse the City's rate-making expenses, if any, in connection with Public Utility Commission of Texas Docket No. 11735 that are otherwise reimbursable under Section 2.106(a) of the Public Utility Regulatory Act of 1995 to the extent that said rate-making expenses are incurred through the entry of the last action by the Public Utility Commission of Texas (i.e. the said Commission's order overruling the last motion for rehearing) in said Docket No 11735; the City hereby agrees that any rate-making expenses incurred in connection with said Docket No. 11735 that the City incurs on appeal of the order in Docket No. 11735 will be the City's sole responsibility and further agrees, in the events that the City is a participant in the joint intervention of cities managed by the Steering Committee of TU Electric Service Area Cities intervening in Docket No. 11735, that the City decides to continue to participate with the Steering Committee in such appeal of said order, and the Company is required to reimburse said Steering Committee for rate-making expenses under Section 2.106 (a) of the Public Utility Regulatory Act of 1995 that are incurred on appeal of said order in Docket No. 11735, to reimburse the Company the City's share of reimbursable expenses related to said appeal and owed by the Company to said Steering Committee determined by the methodology chosen by the said Steering Committee (the City to notify the Company of the method so chosen by the Steering Committee prior to the submission of an invoice by the Steering Committee for the payment by the Company of said reimbursable expenses related to said appeal). Section 18. Assignment of Franchise; Local Office Location; Preservation of Records (a) The Company shall be a legal entity with legal capacity to operate, construct, reconstruct, and maintain an electric power and energy system in the City. Company's principal purpose shall be the provision of electric light, heat, power, and other services, including, but not limited to, transmission, transportation, and bulk sales to the citizens of Paris. The Company shall maintain operations in the ciry of Paris, and shall make available in Paris to the City, within five (5) business days of the City's request, such business records, accounts, documents, and papers relating to its ownership and operation within the city of Paris. All maps, plats, records, inventaries, and books of the Company, insofar as they show values of existing property, shall be preserved for use, if necessary, in connection with future valuation of the property of the Company within the corporate limits of the City. (b) This grant shall not be assignable without the express consent, which shall not be withheld unreasonably, of the governing body of the City, such consent to be evidenced by an ordinance that fully recites the terms and conditions, if any, upon which such consent is given. Section 19. Insurance Company will insure against the risks undertaken pursuant to their franchise including indemnification under Section 21 hereof, such insurance may be in the form of self-insurance to the extent permitted by applicable law under a Company-approved formal plan of self-insurance maintained in accordance with sound accounting practices. Otherwise, Company shall maintain reasonably adequate insurance covering its obligations of indemnity under Section 21 hereo£ A certificate of insurance shall be filed with the City Clerk within 30 days of the effective date of this franchise and upon any substantial change in the nature of its coverage under this section. Should Company elect to self-insure, its notice to the City shall contain information identifying the process for filing a claim. 8 Section 20. Guarantee (a) Company expressly agrees, covenants, and guarantees to the City that its present lines, poles, towers, wires, anchors, cables, manholes, conduits, and other structures and appurtenances in connection with its electric power utility system, as now erected and in use in said City under previous grants, are equipped and constructed with the most modern safety appliances in general use in this state for the safety and protection of its employees, the customers of said Company, and all members of the general public in their ordinary use of any of the premises named herein, and that said Company will so maintain them and all additional ar new works constructed during the life of this franchise; if not so equipped, Company will so equip within ninety (90) days after passage of this Ordinance, and thereafter so maintain. (b) Company further expressly agrees to defend, at its cost, any suit ar suits that may be filed against the City for negligence of said Company or any of its employees in the maintenance, erection, use, or repair of its lines, poles, towers, wires, anchors, cables, manholes, conduits, and other structures and appurtenances in connection with such electric power utility system, or work done in connection therewith, or any work described in Sections 2, 3, 4, 5, 6a, 6b, 7, 8, and 9, inclusive of this Ordinance, and pay any judgment that may be finally rendered against the City in any such suit or suits. (c) Failure or refusal to comply with either or both of the foregoing subsections shall constitute good and sufficient cause for forfeiture of this franchise, and the same may be forfeited by City if, after thirty (30) days' written notice to Company of City's intention to forfeit, compliance is still refused. (d) It is understood that it is not the intention of the parties hereto to create liability for the benefit of third parties, but that this agreement shall be solely for the benefit of the parties hereto and shall not create or grant any rights, contractual, or otherwise, to any person or entity. Section 21. Indemnity Grantee shall defend, indemnify, save, and hold whole and harmless the City and all of its officers, agents, and employees, against any and all claims, lawsuits, judgments, settlements, costs and expenses for personal injury (including death), property damage, or other harm for which recovery of damages is sought suffered by any person or persons that may be occasioned by, or arise out of, Company's performance of any of the terms or provisions of this Ordinance, or by any negligent or strictly liable act or omission by Company, its officers, agents, employees, subcontractors, affiliates, and subsidiaries in the construction, maintenance, operation, or repair, or the generation, transmission, or distribution system, or by the conduct of Company's business in the City pursuant to this Ordinance; except that the indemnity provided for in this paragraph shall not apply to any liability resulting from the sole negligence or fault of the City, its officers, agents, employees, or separate contractors, and 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. It is understood that it is not the intention of the parties hereto to create liability for the benefit of third parties, but that this agreement shall be solely for the benefit of the parties hereto and shall not create or grant any rights, contractual, or otherwise, to any person or entity. Section 22. Good Faith Effort (a) Company agrees not to discriminate against any customer or general citizen because of race, creed, color, sex, religion, handicap, age, or national origin; nor shall any person be denied service because of race, creed, color, sex, religion, age, handicap, or national origin. 9 (b) Company agrees to continue in its commitment to maintain fairness and equality in the workplace and in its purchases of goods, equipment, and other services. To this end, Company agrees to faithfully adhere to all valid and applicable federal, state, and city rules and regulations pertaining to non-discrimination, equal employment, and affirmative action. Section 23. Franchise and Other Violation Upon evidence received by the City Council of the City of a violation of this franchise, City Charter provision, or ordinance lawfully regulating Company in the furnishing of service hereunder is occurring or has occurred, the City Council shall cause an investigation to be made. If the City Council finds that such a violation exists or has occurred, it shall take the appropriate steps to secure compliance. Section 24. Conformity to Constitution, Statutes, Charter, and City Code This ordinance is passed subject to the applicable provisions of the Constitution and laws of the State of Texas, the Charter of the City of Paris, and the Code of Ordinances of the City of Paris. This franchise agreement shall in no way affect or impair the rights, obligations, or remedies of the parties under the Public Utility Regulatary Act of 1995, ar amendments thereto. Section 25. Annexations by City This franchise shall extend to and include any and all territory which is annexed by the City during the term of this franchise. Section 26. Energy Conservation And Efficiency Upon request, Company will, to the extent Company provides such service to other customers, provide the City of Paris with periodic professional reviews of the City's energy usage, costs, conservation, efficiency, and environmental protection activities by division and delivery point in each City department. Section 27. No Personat Liability All of the regulations provided in this Ordinance are hereby declared to be governmental and for the health, safety, and welfare of the general public. Any member of the City Council or any City official or employee charged with the enforcement of this Ordinance, acting for the City of Paris in the discharge of his or her duties, shall not thereby render himself or herself personally liable; and he or she is hereby relieved from all personal liability for any damage that might accrue to persons or property as a result of any act required or permitted in the discharge of his or her duties. Section 28. No Waiver of Rights Neither party to this agreement waives its respective rights to seek all appropriate legal and equitable remedies as allowed by law upon violation of the terms of this agreement, including, but not limited to, seeking injunctive relief in a court of competent jurisdiction. Section 29. Right of Appeal Nothing herein shall be deemed a waiver, release, or relinquishment of either party's right to contest or appeal any action or decision of the other party made contrary to any federal, state, or local law or regulation. Section 30. No Exclusive Privileges Conferred by this Ordinance The rights, privileges, and franchises granted by this Ordinance are not to be considered exclusive, and the City hereby expressly reserves the right to grant, at anytime, like privileges, rights, and franchises as it may see fit to any other person or corporation for the purpose of providing electric light, heat, and power to and for the City and the inhabitants thereof. 10 Section 31. Cumulative Effect: Repealer This ordinance shall be and is hereby declared to be cumulative of all other ardinances of the City of Paris, and this Ordinance shall not operate to repeal or affect any of such other ordinances except insofar as the provisions thereof might be inconsistent or in conflict with the provisions of this Ordinance, in which event such conflicting provisions, if any, in such other ordinance or ordinances are hereby repealed. The captions in the Ordinance are included for convenience only and shall not be taken into consideration in any construction or interpretation of the Ordinance or any of its provisions. Acceptance of this Ordinance by the Company shall not affect the Company's right to contest or challenge the validity, enforceability, or applicability of any other ordinance or of any provision of the City Charter. Section 32. Effective Date This Ordinance shall become effective on November 7, 1997, the same being sixty (60) days from the date of final passage hereof, and upon the filing by the Company with the City Clerk of its written acceptance of the terms and conditions hereof within thirty (30) days after the date of final passage. Section 33. Term of this Ordinance: Expiration This franchise shall be for a term of three (3) years from and after the effective date hereof, and shall terminate on November 6, 2000. Section 34. Effect of City's Charter The franchise granted herein shall be subject to all valid and enforceable provisions of Section 122 of the Charter of the Ciry of Paris and other applicable valid sections therein, which are hereby incorporated by reference and expressly made a part hereof, the same as if copied verbatim. Section 35. Severability It is hereby declared to be the intention of the City Council that the sections, paragraphs, sentences, clauses, and phrases of this Ordinance are severable, and, if any section, paragraph, sentence, clause, or phrase of this Ordinance shall be declared unconstitutional by the valid judgment or decree of any court of competent jurisdiction, such unconstitutionality shall not affect any of the remaining sections, paragraphs, sentences, clauses, and phrases of this Ordinance, since the same would have been enacted by the City Council without the incorporation in this Ordinance of such unconstitutional section, paragraph, sentence, clause, or phrase. In the event that any provision hereof is declared unconstitutional, void, invalid, or unenforceable, the Company and the City agree to negotiate, in good faith, a provision that will be valid and enforceable and which will be as close in meaning and application as practicable to said unconstitutional, void, invalid, or unenforceable provision. Section 36. Acceptance of Franchise (a) The Company shall, within thirty (30) days from the final passage of this Ordinance, file in the office of the City Clerk a written instrument signed and acknowledged by a duly authorized officer, in substantially the following form: "To the honorable Mayor and City Council of the City of Paris: "The Company, Texas Utilities Electric Company, acting by and through the undersigned authorized officer, hereby accepts Ordinance No. granting a franchise to Texas Utilities Electric Company. "Senior Vice President "TEXAS UTILITIES ELECTRIC COMPANY 11 "ATTEST: "Secretary "Executed this day of 19 " (b) The acceptance shall be duly acknowledged by the person executing the same. In the event the acceptance is not filed within the thirty (30) day period, this Ordinance and the rights and privileges hereby granted shall terminate and become null and void. Section 37. City s Authority to Grant Franchise This franchise is subject to all of the rights, privileges, and powers granted the City of Paris by its Charter. Acceptance of this Ordinance by the Company shall not affect the Company's right to contest or challenge the validity, enforceability, or applicability of any other ordinance or of any provision of the City Charter. Section 38. Compliance With Legal Requirements It is hereby officially found and determined that the three (3) meetings at which this Ordinance was passed by a vote of the majority of the City Council were open to the public, as required by law, and that each of such meetings were regular meetings of the City Council, and that public notices of the times, places, and purposes of said meetings were given as required. INTRODUCED, READ, AND PASSED on first reading on August 7, 1997, at a regular meeting of the City Council of the City of Paris; on second reading on August 11, 1997, at a regular meeting of the City Council of the City of Paris; and on third and final reading on September 8, 1997, at a regular meeting of the City Council of the City of Paris, the last reading being not less than thirty (30) days from the first. FINALLY PASSED AND ADOPTED by the Ciry Council of the City of Paris at a regular meeting this the 8th day of September, 1997. Eric S. Clifford, Mayor ATTEST: Mattie Cunningham, City Clerk 4APPROVE S TO FORM: ayn , City Attorney 12