ORD 1998-16 - Franchise With Mid-South Electric 09-01-1998ORDINANCE NO. 98-16
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF HUNTSVILLE,
TEXAS, GRANTING TO MID -SOUTH ELECTRIC COOPERATIVE
ASSOCIATION, ITS LEGAL REPRESENTATIVES, SUCCESSORS, LESSEES,
AND ASSIGNS, GRANTEE HEREIN, CERTAIN POWERS, LICENSES,
RIGHTS -OF -WAY, PRIVILEGES, AND FRANCHISE TO CONSTRUCT AND
MAINTAIN IN THE CITY OF HUNTSVILLE, TEXAS, AS NOW OR
HEREAFTER CONSTITUTED, AN ELECTRIC POWER UTILITY SYSTEM IN
THE CITY, TOGETHER WITH THE RIGHT TO USE THE PUBLIC RIGHTS -
OF -WAY FORA TERM CERTAIN, FROM AND AFTER THE SIXTY -FIRST DAY
OF PASSAGE HEREOF; AND PRESCRIBING CERTAIN RIGHTS, DUTIES,
TERMS, AND CONDITIONS HEREIN MENTIONED; AND PROVIDING FOR
THE PAYMENT TO THE CITY OF A PERCENTAGE OF CERTAIN RECEIPTS
OF GRANTEE FROM ITS OPERATIONS THEREIN; PROVIDING FOR THE
ACCEPTANCE OF THIS ORDINANCE BY GRANTEE; PROVIDING A SAVINGS
CLAUSE; PROVIDING AN EFFECTIVE DATE, AND REQUIRING
PUBLICATION.
WHEREAS the City of Huntsville, Texas (the "City ") has the authority to manage all
public rights -of -way within the City;
NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
HUNTSVILLE, TEXAS, that:
SECTION 1. Definitions.
1.1 For this Ordinance the following terms, phrases, and words shall have the
meanings given herein. When not inconsistent with the context, and whenever the
sense of text requires, words used in the present tense include the future, words
in plural number include the singular number, words in the singular number
include the plural number, and the use of any gender shall be applicable to all
genders. The words "shall' and "will' are mandatory and the word "may" is
permissive. Words not defined shall be given their common and ordinary
meaning.
1.2 "City" shall mean the CITY OF HUNTSVILLE, Walker County, Texas, a municipal
corporation in the State of Texas, as constituted as of the effective date of this
Ordinance or as may hereafter be constituted.
1.3 "Cooperative" shall mean MID -SOUTH ELECTRIC COOPERATIVE ASSOCIATION, a
Texas electrical cooperative association, existing under and by virtue of the laws
of the State of Texas, and authorized to transact and transacting business in the
State of Texas, together with its legal representatives, successors, lessees, and
assigns.
1.3 "City Manager" shall mean the City Manager of the City or the Manager's authorized
designee.
1.4 "Council" shall mean the governing body of the City.
1.5 "Customer" shall mean any person or organization being billed for electric utility
service by the Cooperative whether used by that person or organization, or by
others.
1.6 "Director of Finance" shall mean the Director of the Finance Department of the
City, or its successor department. The term shall also mean the Director's
successor in function.
1.7 "Director of Public Works" shall mean the Director of the Public Works Department
of the City, or its successor Department. The term shall also mean the Director's
successor in function.
1.8 "Transmission and distribution system" shall mean all interrelated lines, equipment,
poles, installations, and systems, fixtures, and other facilities or appurtenances
including substation facilities used or necessary for the transmission and
distribution of electric utility service to consumers or customers in the City and its
environs by the Cooperative.
1.9 "Franchise" shall mean this Ordinance and all rights and obligations established
herein or as amended.
1.10 "Electricity" or "electric utility service" shall mean energy (kWh) and power (kW)
distributed, conveyed, or otherwise conducted, served, supplied, and furnished to
inhabitants of the City and others, and to the City where applicable, by the
Cooperative.
1.11 "Gross receipts" shall mean the total amount billed by the Cooperative from the
sale of electric utility service to consumers within the corporate limits of the City,
except the following sales, which are expressly excluded from the term "gross
receipts":
a. Sales to Industrial Consumers - Sales to Industrial consumers shall include, but
not be limited to, sales of electric energy used by a consumer principally for
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manufacturing, processing, mining, refining, irrigation, shipbuilding, construction,
radio communication, operation of railroads, and other common carriers, and
public utilities, including, but not limited to, pumping, sewerage, and drainage;
b. Sales for Governmental Pumping - Sales for Governmental pumping (i.e.,
electrical power for sewer lift stations and the like) shall include sales to the City,
United States, County, State of Texas, or to any governmental or political
subdivision, unit, body, district, agency, instrumentality or wholly owed
corporation, of any of the foregoing, which sales, if any, are made under a pumping
service classification, or rate schedule or successor rate schedule, available only
to such governmental authorities;
c. Sales for street lighting; and
d. Sales for Commercial street lighting.
1.12 "Street ", "avenue ", or "alley" shall mean a publicly dedicated or maintained right -of-
way, a part of which is open to use by the public for vehicular travel.
1.13 "Public rights -of -way" shall mean streets, avenues, easements (other than private
easements obtained by the Cooperative), rights -of -way, alleys, and highways of the
City and beneath the surface thereof as they now or hereafter may exist and as
defined herein.
1.14 "City utility" shall mean any utility service provided by the City including, but not
limited to, electric, water, and /or sewer utility service.
1.15 "Cooperative's service regulations" shall mean the service regulations or tariffs of
the Cooperative as are now or as shall in the future be approved by the appropriate
regulatory authority having jurisdiction.
SECTION 2. Granting of Franchise; Term; Transferability.
2.1 The City hereby grants to the Cooperative a non - exclusive Franchise to maintain,
construct, equip, extend, replace, alter, and otherwise establish in the City a
transmission and/or distribution system for the provision of electric utility service.
This Franchise authorizes only such transmission and distributions systems as
reasonably necessary or appropriate to provide electric utility service to the City
and its inhabitants, including any governmental agency or subdivision thereof, and
to any person, firm, or corporation wherever located, within or without the City.
2.1.1 In accordance with and during the term of this Franchise grant, the City
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grants the Cooperative passage and right -of -way in, under, along, and across
any public ways. The City also grants the Cooperative the right to occupy
and use in any lawful way the public ways in accordance with and during
the term of this Franchise. The City grants this occupancy and use solely for
the services, uses, effects, and lawful purposes described herein.
2.1.2 Nothing herein shall be construed to require or authorize the Cooperative
to exceed its certification rights granted by the Public Utility Commission of
the State of Texas, except as the City and the Cooperative may mutually
agree, and so long as such agreement does not violate any rules or
regulations of such Commission.
2.1.3 The Cooperative shall, except for a bona fide emergency, give ten (10)
calendar days notice to the Director of Public Works before excavating the
paved portion of any public way. In a bona fide emergency, the
Cooperative shall give notice to the Director of Public Works of any such
excavation when practicable.
2.2 The Cooperative shall, before constructing any facilities within City parks or on land
hereafter designated as a City park, comply with all applicable State laws, including
Chapter 26 of the Texas Parks and Wildlife Code, and with all applicable City rules
and regulations.
2.3 The operation, construction, and maintenance of the Cooperative's transmission
and distribution system and other property subject to this Franchise shall be
subject to all applicable laws of the United States, the State of Texas, the City
Charter, and City ordinances, rules, and regulations. The venue for all causes of
action arising under this Ordinance shall be in Walker County, Texas.
2.4 In addition to the rates charged for electricity supplied, the Cooperative may make
and enforce reasonable charges, rules and regulations for service rendered in the
conduct of its business, as approved by the Texas Public Utility Commission,
including a charge for services rendered in the inauguration of electrical service,
and may require, before furnishing service, the execution of a contract therefor.
The Cooperative shall have the right to contractwith each customerwith reference
to the installation of, and payment for, any and all of the electric lines from the
connection thereof with the Cooperative's lines in the streets or alleys to and
throughout the consumer's premises. The Cooperative shall own, operate, and
maintain all service lines, which are defined as the lines from the Cooperative's
electric lines to the consumer's service lines in the street easements and to the
consumer's property line when lines are located in the alleys. The consumer shall
own, operate, and maintain all meter loops and wiring from the point of delivery.
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2.5 The Cooperative shall be entitled to require from each and every consumer of
electricity, before electric service is commenced, a deposit of twice the amount
of an estimated average monthly bill, which said deposit may be retained by the
Cooperative until service is discontinued and all bills therefor have been paid. The
Cooperative shall then return said deposit to the consumer, together with the
Texas Public Utility Commission approved interest thereon from the date of said
deposit up to the date of discontinuance of service. The Cooperative shall be
entitled to apply said deposit, with accrued interest, to any indebtedness owed the
Cooperative by the consumer making the deposit.
2.6 The term of this Franchise shall begin from and after this Ordinance shall have
been adopted by the City Council and accepted by the Cooperative until January
10, 2008, unless sooner terminated, as provided herein.
2.7 The Cooperative shall not transfer this Franchise or any rights and privileges
granted herein without written approval of the City Council as expressed in an
ordinance, which approval shall not be unreasonably withheld. Notwithstanding
the foregoing, no merger, consolidation, or conveyance to any other entity of which
the Cooperative is a member shall be deemed a transfer within the meaning of this
paragraph. In the event of any approved transfer or transfer by merger, etc., the
Cooperative shall provide written notice of the actual transfer within thirty (30)
days of the date of the completion of the transfer.
SECTION 3. Acceptance by the Cooperative.
This Franchise shall become effective upon the acceptance in writing hereof by the
Cooperative. The Cooperative shall file the written acceptance with the City Secretary
within sixty (60) days following the final adoption of this Ordinance by the City Council
and the same shall be attached to this ordinance.
SECTION 4. Service.
4.1 Electric utility service shall be provided by means of the Cooperative's transmission
or distribution system. The Cooperative shall use reasonable efforts to assure that
locations of the transmission and/or distribution system shall not unreasonably
interfere with the flow of water in any gutter or drain; the operations or facilities of
any City utility, and television cable, telephone facilities, traffic control signals,
street lights, fire lines, or other communication lines, or ordinary travel on the
streets or sidewalks.
4.2 The location and route of all Cooperative transmission and distribution system
facilities shall be subject to:
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a. the lawful, reasonable, and proper control of the City; and,
b. all ordinances, laws, rules, regulations, and Charter provisions of the
City now in force or that may hereafter be passed and adopted that
are not inconsistent with this Ordinance.
4.3 The surface of any public way disturbed by the Cooperative in the construction or
maintenance of its transmission and distribution system shall be restored within
a reasonable time after the completion of the work to a similar condition as existed
before the commencement of the work. The City shall have ninety (90) days from
the date of such restoration to decide whether the restored surface requires
additional work to place it in as similar condition as existed before the
commencement of the work. If the City makes such determination, the
Cooperative shall perform all additional restoration work to the reasonable
satisfaction of the City. No public way shall be encumbered for a period longer
than reasonably necessary to complete all work.
4.4 The Cooperative shall not unreasonably discriminate in furnishing electric utility
service on the terms provided in the Cooperative's service regulations and line
extension policy, as in effect from time to time. Electric utility service shall be
provided to all areas of the City for which the Cooperative holds a valid Certificate
of Convenience and Necessity issued by the Public Utility Commission of Texas,
or for which the Cooperative provides service as a result of an agreement with the
City of Huntsville, subject to the tariffs in force from time to time.
4.5 The Cooperative shall maintain its property and transmission and distribution
system in good order and condition, consistent with the needs of the service to be
rendered therefrom. The City recognizes and agrees that the Cooperative shall
retain full title in, and right to, its personal property, whether or not the same is
incorporated in real estate.
4.6 The City, at any time, may make reasonable inquiries on a timely basis.
4.7 The Cooperative shall keep the City informed concerning the Cooperative's
conservation programs. Upon request, the Cooperative shall deliver the energy
efficiency plan, if any, required to be filled by the Cooperative with the Public Utility
Commission of Texas pursuant to the rules and regulations of that Commission.
SECTION 5. Use of Streets and Easements.
5.1 The Cooperative is hereby authorized, licensed, and empowered to do any and all
things necessary and proper to be done and performed in executing the powers
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and using the privileges granted and described by this Franchise; provided,
however, that such activities shall not conflict with existing water pipes, sewer,
electric power lines, telephone lines, cable television lines, and other authorized
installations. Provided also, that all work done in the public ways by the
Cooperative shall be done with reasonable diligence and without unreasonable
inconvenience to the public or individuals.
5.2 By the grant of authority described in Section 5. 1, it is not the intention of either the
City or the Cooperative to create any liability, right, or claim for the benefit of third
parties and this Franchise is intended and shall be construed for the sole benefit
of the City and the Cooperative.
SECTION 6. Work by the City and Others.
6.1 The City reserves the right to lay or to permit to be laid, sewer, cable television,
water, telephone, electric, and other lines, cables, and conduits, 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 any public way occupied by the
Cooperative. Without waiving any Constitutional or statutory prohibitions to the
contrary, the City shall only be liable to the extent permitted by law to the
Cooperative for the damage, if any, to the Cooperatives's transmission and
distribution system that is the result of the negligence or willful misconduct of the
City or its employees. The City shall not be liable, under any circumstances, for
damage caused to the Cooperative as a result of work done by persons other than
the City's employees, or the City's agents and contractors which is the subject of
the claim for damages was performed under the direction, supervision, and control
of the City. By this agreement it is not the intention of either the City or the
Cooperative that the City assume liability in general for the negligence or willful
misconduct of the City's agents or contractors for any and all work performed by
them for or on behalf of the City, but only in the limited circumstances described
above. Removal and relocation expenses incurred by the Cooperative shall be
reimbursed by the person for whom the removal or relocation is made, except as
provided in Section 7. The Cooperative may require payment of relocation costs
in advance of removing or relocating any of its lines or facilities. The Cooperative
shall have a reasonable time within which to perform any such removal or
relocation.
SECTION 7. Changes for Governmental Purposes.
7.1 If, during the period of this Franchise, the City will elect to widen or straighten any
public way, or any water pipe, waste water pipe, or any overhead or underground
structure within the corporate limits of the City, so as to conflict with the
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transmission or distribution system of the Cooperative, the Cooperative will
remove or relocate, as necessary, that portion of its transmission or distribution
system affected the City's activities. The removal or relocation of the transmission
and distribution system of the Cooperative will be at the Cooperative's expense;
provided however, that the City shall provide on appropriate easement or public
way alongside the relocated or straightened public way or facility to which the
Cooperative may relocate its distribution or transmission equipment.
7.2 Schedules for work contemplated by Section 7.1 shall be developed by designated
representatives of the Cooperative and the City. If such representatives cannot
agree on the schedule, the City Manger, after consultation with the Cooperative,
shall establish a schedule. This schedule shall provide for a minimum of thirty (30)
days between the time the schedule is furnished to the Cooperative and the time
that any specific work to be done by the Cooperative covered in the schedule is to
begin.
7.3 Where the federal government or state government provides compensation for
utility adjustments for the work contemplated by this Section that is funded, in
whole or in part, with federal or state highway monies, the City shall not object to
a request from the Cooperative that compensation also be provided to the
Cooperative by the funding authority, and may, on a case-by-case basis, participate
in that request. If the City receives such compensation, it shall deliver to the
Cooperative that portion of the compensation attributable to the Cooperative's
costs of removal or relocation.
SECTION 8. Fees.
8.1 The Cooperative agrees to reimburse and pay the City its cost for processing and
preparing the Agreement, due and payable upon acceptance of the Franchise
ordinance by the Cooperative in the amount of $2,500.00.
8.2 Additionally, as the Cooperative has had the use and benefit of the City's rights-of-
way since approximately, September 13, 1994, they agree that they shall pay the
City 2% of their Gross Receipts, as defined herein in Section 1. 13, for the period
from July 1, 1995 through December 31, 1996, in the approximate amount of
$25,483.35, and 4% of the Gross Receipts for the calendar year 1997 in the
approximate amount of $42,255.51. The combined total of these two amounts is
$67,738.86 ("1995-1997" Payment). Such 1995-1997 Payment is payable by the
Cooperative to the City over a three year period, on a quarterly basis at 7% interest
(accruing from July 1, 1998), with an estimated principal and interest of $6,307.42,
with the first payment being due November 15, 1998. By September 15, 1998, the
Cooperative shall provide to the City a list of all customer accounts in the City of
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Huntsville and access to its records in sufficient detail that the City may verify that
the 1995-1997 Payment amount is reasonable and accurate. For the period from
January 1, 1998 to June 30, 1998, the Cooperative shall pay 4% of its Gross
Revenues to the City ("Initial 1998 Payment"). This Initial 1998 Payment is
estimated to be approximately $20,000.00 and shall be paid upon acceptance of
the Franchise. Accompanying such Initial 1998 Payment shall be sufficient
information in order for the City to determine if the payment is reasonable and
accurate. In the event the City reasonably determines that there was an incorrect
payment calculation in the amount payable for the 1995-1997 Payment or the Initial
1998 Payment, the Cooperative shall adjust the amounts due to the City
accordingly.
8.3 The City and the Cooperative agree that the public way to be used by the
Cooperative in the operation of its transmission and distribution system is valuable
public property acquired and maintained by the City at the expense of its
taxpayers. The City and the Cooperative agree that the City will incur costs in
regulating and administering the Franchise granted by this Ordinance
("administration costs"). In consideration of the use of the public way and the
Franchise herein granted, the Cooperative agrees to pay to the City an annual
Franchise fee of four percent (40/6) of its gross receipts (as defined in Section 1.13),
which fee (the "Franchise Fee") is payable quarterly as specified in Section 8.4.
8.4 The City and the Cooperative recognize that the Cooperative may enter into
Franchise agreements after the effective date of this Franchise with other
municipalities. The City and the Cooperative further recognize that the
Cooperative may agree to pay a Franchise fee for the use of a municipality's public
right-of-way, however characterized, that may be greater than four percent (4%)
of the Cooperative's gross receipts (as defined in Definitions 1.13) in that
municipality. In such an event, the Cooperative's Franchise Fee under this Section
8 shall be increased to an amount equal to the Franchise fee the Cooperative has
agreed to pay that municipality. The Cooperative's Franchise fees or prorata part
thereof shall be increased pursuant to this Section in those instances in which the
Cooperative enters into such agreements or renews or extends a Franchise
agreement adopted by any municipality on or after the effective date of this
Ordinance.
8.4.1 The increased Franchise Fee to the City provided by this Section 8.4 shall be
subject to the same terms of collection of such fee from the Cooperative's
customers as previously existed under the terms of this Ordinance as
originally enacted. The Cooperative shall notify the City of such increase
within thirty (30) days of the effective date of the other Franchise
agreement. The increased Franchise fee due the City under the terms of
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this provision 8.4.1 shall begin on the first day of the first month next
following the date the City accepts and authorizes the increase. The City's
acceptance and authorization shall be on the same terms as those in effect
for the other municipality. The collection of the increased Franchise Fee
shall continue until expiration of this Franchise agreement or of the
agreement with such other municipality, whichever is sooner occurs.
8.4.2 Nothing in this section shall alter or affect the dates upon which the
Franchise Fee specified in this Franchise is payable or the period to which
said fees are referable as provided in Section 8.4. The audit provisions of
this Franchise shall extend to any and all records of payment of the
Franchise fee between other municipalities and the Cooperative.
8.4.3 The Cooperative's Franchise Fee shall not be increased under this section
where the Cooperative succeeds to or is assigned an existing Franchise
through the acquisition by merger or otherwise of another electric utility.
8.4.4 Neither shall the increased franchise fee contemplated by this Section take
effect if the term of the increased franchise fee does not exceed three (3)
years in the aggregate. This term may be increased by the City in the event
that the City determines that the Cooperative and such other municipality
are negotiating in good faith.
8.5 The Franchise Fee specified in Section 8.3 shall be payable on a calendar quarterly
basis to the City and shall be delivered to the City's Director of Finance, together
with a statement indicating the derivation and calculation of the payment. Each
quarterly payment shall be due on the fifteenth (15th) day of the second month
following the end of the quarterly period for which the payment is due. The
quarterly payments shall be due on February 15, May 15, August 15, and November
15 of each year during the term of this Franchise. The February 15 payment shall
be based upon the Cooperative's gross receipts (as defined in Section 1.13) during
the calendar quarter ending the prior December 31. The May 15 payment shall be
based upon the Cooperative's gross receipts (as defined in Section 1.13) during the
calendar quarter ending the prior March 31. The August 15 payment shall be based
upon the Cooperative's gross receipts (as defined in Section 1.13) during the
calendar quarter ending the prior June 30. The November 15 payment shall be
based upon the Cooperative's gross receipts (as defined in Section 1.13) during the
calendar quarter ending the prior September 30. The first quarterly Franchise
payment provided by this Section shall be made on or before November 15, 1998,
and is based upon the Cooperative's gross receipts during the calendar quarter
beginning July 1, 1998, and ending September 30, 1998.
8.6 In the event any quarterly payment is made after the date due, the Cooperative
agrees to pay a late payment penalty of $100.00, or simple interest at the rate of ten
(10%) percent per annum of the total amount past due, whichever is greater.
8.7 For purposes of verifying the amount of the Franchise Fee, the Cooperative
authorizes the City or its authorized representatives to inspect the books of the
Cooperative at reasonable times.
8.8 The Cooperative shall file annually with the City's Director of Finance, no later than
four (4) months after the end of the Cooperative's fiscal year, annual audited
statements of the Cooperative related to the income and expense attributable to
the Cooperative's operation in the corporate city limits of the City or other
municipality by which the Cooperative has entered into a Franchise agreement.
SECTION 9. Foreclosure, Receivership, and Bankruptcy.
The Cooperative shall notify the City within thirty (30) days after the appointment of a
receiver or trustee to take over and conduct the business of the Cooperative, whether in
receivership, reorganization, bankruptcy, or otheraction orproceeding, whethervoluntary
or involuntary, such notice to include where applicable the cause number and court
involved.
SECTION 10. Captions and Severability.
10.1 The captions for the sections of this Ordinance are for the convenience of the
parties only and do not reflect the intent of the parties.
10.2 Notwithstanding anything contained herein to the contrary, in the event that any
part of this Ordinance is declared by any court of law to be unenforceable, void,
unlawful, or otherwise inapplicable, the remainder of the provisions of this
Ordinance shall remain in full force and effect and shall in no way be affected,
impaired, or invalidated. In such event, the level of compensation to be provided
to the City shall continue to be comparable to that set forth in this Ordinance.
SECTION 11. Effective date; publication; and costs.
11.1 In compliance with the Charter of the City, this Ordinance shall be presented in
writing at two regular meetings of the Council, and shall not be finally acted upon
until thirty (30) days after the first presentation thereof. Within five (5) days
following each of its two presentations, a descriptive caption of this Ordinance
shall be published one (1) time in a daily newspaper published in the City and
expense of such publication shall be bome by the Cooperative. This Ordinance
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shall take effect and be in force from and after its passage on second reading,
subject to its acceptance by the Cooperative.
11.2 The City Clerk is hereby authorized and directed to make appropriate
endorsements over the Clerk's official hand and seal of the City, on a form
provided at the conclusion of this Ordinance, including the dates upon which this
Ordinance shall have been presented in writing at two separate regular meetings
of the Council, the date of final passage of the Ordinance, the date that this
Ordinance shall take effect, the date the Cooperative shall have accepted this
Franchise, and the dates upon which the descriptive caption of this Ordinance
shall have been published in the newspaper.
SECTION 12. General Provisions.
12.1 Entire Agreement. This Ordinance contains all of the agreements of the parties
with respect to any matter covered or mentioned in this Ordinance and no prior
or contemporaneous agreements or understandings pertaining to any such matters
shall be effective for any purpose.
12.2 Modification. No provision of this Ordinance may be amended or added to except
by agreement in writing signed by both of the parties.
12.3 Attorney's Fees. If any suit or other action is instituted in connection with any
controversy arising under this Ordinance, the prevailing party shall be entitled to
recover all of its costs and expenses, including such sum as the Court may judge
reasonable for attorney's fees, including fees upon appeal of any judgment or
ruling.
12.4 Non-Waiver. Failure of the City to declare any breach or default immediately upon
the occurrence thereof, or delay in taking any action in connection with, shall not
waive such breach or default, but the City shall have the right to declare any such
breach or default at any time. Failure of the City to declare one breach or default
does not act as a waiver of the City's right to declare another breach or default.
12.5 Governing Law / Venue. This Ordinance shall be governed by and construed in
accordance with the laws of the State of Texas. The venue and jurisdiction over
any dispute related to this Ordinance shall be with the Texas State District Court
in Walker County, Texas.
12.6 Authority. Each individual executing this Ordinance on behalf of the City and the
Cooperative represents and warrants that such individuals are duly authorized to
execute and deliver this Ordinance on behalf of the Cooperative or the City.
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12.7 Indemnity.
The Cooperative agrees to promptly defend, indemnify and hold City harmless from
and against all damages, costs, losses or expenses (i) for the repair, replacement,
or restoration of City's property, equipment, materials, structures and facilities which
are damaged, destroyed or found to Be defective as a result of Cooperative's acts or
omissions, (ii) from and against any and all claims, demands, suits, causes of action,
and judgments for: (a) damage to or loss of the property of any person (including,
but not limited to Cooperative, its agents, officers, employees.and subcontractors,
cities agents, officers and employees, and third parties); and/or (b) death, bodily
injury, illness, disease, loss of services, or loss of income or wages to any person
(including but not limited to the agents, officers and employees of Cooperative, its
subcontractors and City, and third parties), arising out of, incident to, concerning
or resulting from the negligent or willful act or omissions of the Cooperative, its
agents, employees, and/or subcontractors, in the performance of activities pursuant
to the Ordinance.
12.8 Annexations by the City.
This Ordinance shall extend to and include any and all territory which is annexed by the
City during the term of this Ordinance. Within sixty (60) days from the effective date of
any such annexation, the Cooperative shall assure that any and all sales to customers
located within such annexed territory be include and shown on its accounting system as
being within the City. After such sixty day period, all Gross Revenues received from
customers located within such annexed territory shall be subject to the payment
provisions specified in Section 8 of this Ordinance.
SECTION 13. Relationship to Other Laws.
It is the intent of both parties that each party shall enjoy all rights and be subject to all
obligations of this Ordinance for the entire term of the Ordinance and, to the extent any
provisions have continuing effect, after its expiration. However, both parties recognize
that the technology of electrical energy transmission and related technologies are in a
state of flux and that regulatory conditions and Franchise rights and powers may change
drastically during the term of this Ordinance. Should such changes occur that change or
alter the provisions of this Ordinance, the City and the Cooperative shall promptly
negotiate in good faith to amend this Franchise to preserve the rights and obligations of
the City and the Cooperative under this Franchise to the fullest extent consistent with
such changes. The parties agree that the perpetuation of the substantial equivalent of the
current statutory and regulatory structure governing this Ordinance is not a condition of
this Ordinance or a fundamental assumption that either party is making and entering into
it.
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PAS D UNANIMOUSLY FIRST READING on this the i day of
21998.
PASSED SECOND READING on this the day of J998.
APPROVED on this the day of 11998.
ATTEST:
Danna Welter, City
Scott Bounds, City Attorney
THE CITY OF HUNTSVILLE
William B. Green, Mayor
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