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HomeMy WebLinkAboutOrdinance No. 98-1048 CITY OF THE COLONY ORDINANCE NO. 98-1048 AN ORDINANCE GRANTING TO DENTON COUNTY ELECTRIC COOPERATIVE, INC. ("Cooperative") A TEXAS CORPORATION, ITS SUCCESSORS AND ASSIGNS, THE RIGHT, PRIVILEGE AND FRANCHISE TO USE THE PRESENT AND FUTURE STREETS, AVENUES, ALLEYS, ROADS, HGHWAYS, SIDEWALKS, EASEMENTS AND OTHER PUBLIC RIGHTS-OF-WAY OF THE CITY OF THE COLONY, TEXAS ("City") CERTIFICATED BY THE PUBLIC UTILTY COMMISSION OF TEXAS TO THE COOPERATIVE FOR CONSTRUCTION AND OPERATION OF ITS ELECTRIC DISTRIBUTION SYSTEM; REGULATING THE USE OF THE STEETS BY SAID COOPERATIVE AND THE REPAIR AND RESTORATION OF STREETS DISTURBED BY CONSTRUCTION; PROVIDING FOR THE TEMPORARy REMOVAL, RAISING AND LOWERING OF CABLES AND OTHER EQUIPMENT AND MATERIAL; PROVIDING FOR COMPENSATION TO BE PAID TO THE CITY; PROVIDING THAT THIS FRANCHISE SHALL NOT BE EXCLUSIVE; PROVIDING A SEVERABH~ITY CLAUSE; RESERVING ALL POWER OF REGULATION; PROVIDING FOR INDEMINITY BY THE COOPERATIVE TO THE CITY; MAKING MISCELLANEOUS PROVISIONS RELATIVE TO THIS GRANT OF FRANCHISE; PROVIDING FOR ACCEPTANCE BY THE COOPERATIVE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the Cooperative, a Texas corporation, is now and has been engaged in the electric utility business in the State of Texas and, in furtherance thereof, has erected and maintained certain items of its physical plant in the City pursuant to such rights as may have been granted it by and under the laws of the State of Texas, and subject to the reasonable exercise of the police powers granted by and under the said laws to the City; and WHEREAS, it is hereby found and determined by the City Council of the City that it is in the best interest of the City that a franchise be awarded to the Cooperative stating the agreement between the Cooperative and the City under which the Cooperative may use the streets, alleys and other public rights of way to maintain and construct its physical plant in the city; and WHEREAS, the City Council finds that this Cooperative fully meets all the legal, character, financial, and technical qualifications, as well as all other qualifications necessary to assure adequate and reliable electric utility service is provided to its customers within the city; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS THAT: Section 1. DEFINITIONS For the purpose of this ordinance the following terms, phrases, words, abbreviations and their derivations shall have the meaning given herein. When not; inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number. The word "shall: is always mandatory, and not merely directory. A. "Anniversary Date" shall mean the date on which this franchise is accepted by the Cooperative. B. "City shall mean the City of The Colony, Texas, a home-rule municipal corporation. C. "Electric Distribution System" shall mean the Cooperatives' system of cables, wires, lines, poles, towers, anchors, guy wires, insulators, transformers, substations, conduits, ducts, and any associated equipment, or plant, or other facilities designed and constructed for the purpose of producing, transmitting or distributing electricity to or from customers or locations within the City, as the same now exists and may from time to time be placed, removed, constructed, reconstructed, extended and maintained. D. "Cooperative" shall mean Denton County Electric Cooperative, Inc., a Texas corporation, its successors and assigns. E. "Gross Receipts" shall mean the total annual receipts (without deduction for any costs, fees, expense, tax, or charge of any kind whatsoeve0 collected by the Cooperative from its customers for the sale of electric energy or electric utility service to customers of any kind within the corporate boundaries of the City (Tax Code § 182.025), but does not include receipts by Cooperative for electric energy distributed by Cooperative to another service provider for resale by such service provider pursuant to its electric utility franchise from the City. F. "Public Utility Commission of Texas" or "PUC" shall mean that agency as presently constituted by the laws of the State of Texas or any successor agency. Section 2. GRANT OF AUTHORITY Subject to the terms, conditions and provisions of this ordinance, the right, privilege and franchise is hereby extended and granted to the cooperative to use the present and future public streets, avenues, roads, highways, sidewalks, alleys, easements and other public rights of way of the City for all uses associated with the provision or termination of electric utility service including the construction, reconstruction, upgrade, maintenance and operation of its Electric Distribution system in accordance with the terms of this franchise agreement, within the City's corporate limits, as the same are now and as the same may be from time to time extended. The right, privilege and franchisee granted hereunder are granted subject to the existing charter and ordinances of the City, and are subject to such lawful changes by charter provision or ordinance as may be necessary to the public health and safety by the city in the exercise of its lawful police powers. Section 3. TERM OF FRANCHISE Upon the filing with the City by the Cooperative of the acceptance required herein, this franchise shall be in full force and effect (unless otherwise terminated as provided for herein) for a term of five (5) years from the effective date of this ordinance and continuing so long thereafter until terminated by either Cooperative or City giving twelve months written notice. Section 4. CONSTRUCTION AND MAINTENANCE OF ELECTRIC DISTRIBUTION SYSTEM. The Cooperative may construct new facilities on city streets, easements or rights-of-way. All poles to be placed shall be so set that they will not unreasonably interfere with the flow of water in any gutter or drain, and so located that the same will interfere as little as practicable with the ordinary travel on the street or sidewalk and so as not to unreasonably obstruct visibility at public street intersections. The location and route of all poles, stubs, guys, anchors, conduits and cables placed and constructed and to be placed and constructed by the Cooperative in the construction and maintenance of its Electric Distribution System in the City, and the location of all conduits laid and to be laid by the Cooperative within the limits of the City shall be subject to the lawful, reasonable and proper regulation. The cooperative will give reasonable consideration to requests by the City to relocate underground any of its aerial facilities or place new facilities underground. Section 5. CONDITIONS OF STREET OCCUPANCY. A. .Use. All structures, poles, and facilities erected or maintained by the Cooperative on streets, alleys, avenues, highways or other public rights of way within the City shall be located so as to cause as little interference as practicable with the use of the streets and with the rights of the owners or occupiers of property which adjoins any of such streets. Notwithstanding any other provision of this ordinance, the City shall have power at any time to order and require Cooperative to remove and abate any pole, wire, cable, or other structure or facility that is unnecessarily dangerous to life or property, and in case cooperative, after notice, fails or refuses to act within a reasonable time, the City shall have power to remove or abate the same at the expense of the Cooperative, all without compensation or liability for damages to Cooperative. Except in an emergency, the Cooperative shall comply with applicable City ordinances and rules pertaining to notification when excavating in any street, sidewalk, alley, or other public right-of-way. The City shall be notified as soon as practicable regarding work performed under emergency conditions and Cooperative shall comply with the City's reasonable requirements for restoration of the excavated area. B. Restoration. That portion of the surface of any street disturbed by the Cooperative in laying, constructing, maintaining, operating, using, extending, removing, replacing or repairing its Electric Distribution system shall be restored by the Cooperative as soon as practicable after the completion of the work at its cost and expense to as good a condition as before the commencement of the work, and the Cooperative shall maintain the restoration work to the reasonable satisfaction of the City for one year from the date of completion of such restoration work; provided that Cooperative shall have no duty or obligation to perform any such maintenance prior to receipt of written notice as to the requested maintenance. No street shall be encumbered by construction, maintenance, removal, restoration or repair work by the Cooperative for a longer period than shall be reasonably necessary to execute such work. If there is an unreasonable delay by the Cooperative in restoring and maintaining streets after such excavations or repairs have been made, the City shall have the fight without further notice to restore or repair the same and to require the Cooperative to pay the reasonable cost of such restoration or repair. C. Relocation. Whenever by reason of the construction, repair, maintenance, relocation, widening, or raising or lowering of the grade of any street by the City or by the location or manner of construction, reconstruction, maintenance or repair of any public property, structure or facility by the City, it shall be necessary for the Cooperative to move, relocate, change, alter or modify any of its poles, facilities or structures located on streets, alleys or public rights of way owned by the City such change, relocation, alteration or modification as shall be necessary shall be made by the Cooperative, at its sole cost and expense, reasonably and promptly after Cooperative is directed in writing to do so by the City, without claim for or right of reimbursement of cost or damages against the City. Nothing in this Section shall affect the right of the Cooperative to make claims, including claims for costs or damages, in the event the City requires or requests the Cooperative to move, relocate, change, alter, or modify any of its property located in easements or property owned by the Cooperative, excluding the streets, alleys, sidewalks, and other public rights-of-way of the City. In the event the City is considering relocation of Cooperative facilities located in private easements owned by the Cooperative, then the City shall first provide a description of the facilities, their location and relocations and request an estimate of the costs for relocation. The Cooperative shall estimate the costs of relocation within forty-five (45) days. If the city requests the Cooperative to relocate its facilities, then, to the extent such facilities are located in easements or property owned by the Cooperative, the City shall pay within thirty (30) days of invoice the Cooperative's estimate of costs. D. Temporary_ Raising or Lowering of Wire for Building Moving. Upon written request of any person holding a building moving permit issued by the City, the Cooperative shall raise, or lower its wires and cables temporarily to permit the moving of houses, buildings or other bulky structures. The reasonable expense of such temporary raising or lowering shall be paid by the benefited person, and the Cooperative may require such payment in advance, the Cooperative being without obligation to raise, or lower its wires and cables until such payment shall have been made. The Cooperative shall be given not less than seventy-two (72) hours advance written notice to arrange for such temporary wire and cable adjustments. E. Tree Trimming. The City Council may, from time to time, pass ordinances regulating the trimming or removal of trees on or along City property, however, reasonable tree trimming and vegetation control shall be allowed. F. .Placement of Fixtures. The Cooperative shall not place any part of the Electric Distribution System where the same will unreasonably interfere with any gas, electric, or telephone fixture, water hydrant or main, drainage facility or sanitary sewer, and all parts of the Electric Distribution System shall be placed in such manner as not to unreasonably interfere with the usual travel or use of the streets and all other public rights-of-way. G. .Use of Poles and Ducts, Subject to reasonable availability and agreement between the parties concerning maintenance, access and security, the Cooperative may be required by the city to share duct trench space owned and maintained by the Cooperative or by another person or entity, or to attach its wires to poles or fixtures owned and maintained by another person or corporation or to permit the wires of another public utility to be attached to the poles and fixtures owned and maintained by the Cooperative, upon reasonable, non-discriminatory terms and at fair market value. The intent of this section is to encourage shared use of the infrastructure and decrease excavation of the City's rights-of-way. The Cooperative shall not be required to share trench space of any other person or entity franchised by the City, if it can be satisfactorily shown that thereby the Cooperative will be subjected to increased risks of interruption to its service or to increased liability for accidents, or if the facilities of such other person or entity are not of the character, design and construction required by, or are not being maintained in accordance with current practice. Section 6. INDEMNIFICATION. The Cooperative shall pay, and by its acceptance of this franchise specifically agrees that it will pay, the following: A. Damages and Penalties. All damages and penalties which the city, its officials, officers, agents or employees (together for purposes of this Section 6, the "City"), may legally be required to pay as a result of damages, penalties or any other relief or judgment obtained against the City arising out of or in any way connected with the installation, maintenance, or operation by the Cooperative of its Electric Distribution System within the City, whether or not an act or omission complained of is authorized, allowed, or prohibited by this franchise; and B. .Expenses. All expenses incurred by the City in defending itself, its officials, officers, agents or employees, against any and all claims for (i) damages or penalties described in Section 6.3_ or (ii) any other relief (whether injunctive or otherwise), provided the City gives the Cooperative prompt notice of any such claim and the opportunity to defend such claim. These expenses shall include out-of-pocket expenses, such as, but not limited to, attorney fees, expert witness fees and court costs and shall also include the reasonable value of any services rendered by any officers or employees of the City. C. It is the intent of this section and by its acceptance of this franchise the Cooperative specifically agrees that the Cooperative shall indemnify the City, its official, officers, agents and employees harmless from all liability, actions, causes of action, lawsuits, judgments, claims, costs, fees, or expenses, for injury to or the death of any person or damage to or destruction of any property resulting from or based upon, in whole or in a part, a negligent or other wrongful act or omission of the Cooperative, its officers, employees and agents under this franchise. Notwithstanding the above provisions, no indemnity is provided for amounts otherwise covered by insurance of the indemnified party or by insurance of a third party. The City shall not and does not by reason of the granting of this franchise assume any liability of the Cooperative whatsoever for injury to persons, damage to property, or penalties. 6 D. This provision is not intended to create a cause of action or liability for the benefit of third parties, but is solely for the benefit of the Cooperative and the City. E. The provisions and the obligations of Section 6 shall survive the termination of this franchise. Section 7. LIABILITY INSURANCE A. Minimum Coverage. Simultaneous with the acceptance of this franchise by the Cooperative as set forth in Section 21 hereof, the Cooperative shall file with the City Manager and shall maintain throughout the term of this franchise a policy of commercial general liability as well as other liability insurance in the amounts set forth below, issued by insurance companies duly authorized to do business in the State of Texas insuring the City and the Cooperative with respect to the installation, maintenance, repair, use and operation of the Cooperative's electric Distribution System. The City reserves the right to review the insurance requirements contained herein and to reasonably adjust coverages and limits when deemed necessary and prudent by the City. The amounts designated herein are minimum requirements and do not establish the limits of the franchisee's liability: 1. Commercial General Liability: One Million Dollars ($1,000,000.00) combined single limit per occurrence for bodily injury and property damage. 2. Automobile Liability: One Million Dollars ($1,000,000.00) combined single limit per accident for bodily injury and property damage. 3. Worker's Compensation and Employers Liability: Worker's Compensation limits statutory for the State of Texas and Employers Liability limits of One Million Dollars ($1,000,000.00) per accident. 4. Excess and Umbrella Liability Insurance in a form following the underlying coverages in an amount of One Million Dollars ($1,000,000.00) each occurrence and One Million Dollars ($1,000,000.00) aggregate. B. Notice of Cancellation or Reduction. Such liability insurance shall contain the provisions that written notice of expiration, cancellation, reduction or material change in coverage of the policy shall be delivered to the City Manager and to the Cooperative at least thirty (30) days in advance of the effective date thereof. 7 C. .Term. Such liability insurance shall be kept in full force and effect by the Cooperative during the existence of this franchise and thereafter for a period of not less than 12 months. Section 8. UNDERGROUND INSTALLATION In portions of the City having all telephone lines and electric utility lines underground, whether or not required by ordinance, any and all of the Cooperative's lines, cables and wires installed after the date hereof shall also be buried. This provision does not affect the existing Electric Distribution System or any substitutions or replacements. Section 9. GOVERNING LAW; LIMITATIONS; COMPLIANCE A. ~. This ordinance and the franchise agreement granted herein shall be construed in accordance with the City Charter and City Code, the same may be amended from time to time, to the extent that such charter and code are not in conflict with or in violation of the constitution and Laws of the United States or the State of Texas. B. Limitations. This ordinance and the franchise granted herein shall be governed by and construed in accordance with the laws of the State of Texas. Should either party desire to pursue any claim or cause of action against the other relating to this ordinance, notwithstanding any provisions of any law, the party desiring to assert such claim or cause of action must do so in a forum with appropriate jurisdiction within four years of the date that such claim or cause of action first arose or said claim or cause of action shall be forever barred. Venue for any claim or action under this franchise shall be in Denton County, Texas. C. Compliance. Notwithstanding any other provision of this franchise to the contrary, the City and the Cooperative shall at all times comply with all laws, rules and regulations of the state and federal government and any administrative agencies thereof, with respect to the subject matter of this ordinance. Section 10. PAYMENT TO THE CITY A. In consideration for the rights and privileges herein granted, the administration of this franchise by the City, the temporary interference with the use of public rights of way and other costs and obligations undertaken by the City herein, the Cooperative hereby agrees to pay to the City during the term of this franchise a sum of money equal to four percent (4%) of annual Gross Receipts as herein defined. Franchise fee payments shall be paid quarterly on or before each May 1, August 1, November 1, and February 1 8 for the most recently ended calendar quarter. The Cooperative shall file with the City Manager within thirty (30) days after the expiration of each quarter of each calendar year, or portion thereof during which this franchise is in effect, a statement showing in reasonable detail the Gross Receipts collected during the preceding quarter of the calendar year. Such statement shall be accompanied by the Cooperative's payment to City of four percent (4%) of the Gross Receipts for such quarter. An interest charge shall be assessed on a franchise fee payment not paid on the due date at the rate of ten percent (10%) per year for each day that the franchise fee payment is late, and a check for the interest due shall accompany the late franchise fee payment. The Grantee is hereby authorized to surcharge to customers with the City all or any portion of the Gross Receipts assessment. All bills for services rendered within the City shall be adjusted by the same percentage as the gross receipts assessment specified herein, less any percentage that is recovered by the Cooperative through base rates or other charges. The consideration set forth in this section shall be paid and received in lieu of any other license, charge, fee, street or alley rental, or other character of charge for use and occupancy of the streets, alleys and public places of the City and in lieu of any pole tax or inspection fee tax or other tax, any lawful permit, inspection or other fee whether charged to the Cooperative or any of its contractors; and any imposition other than the usual general ad Valorem taxes, special assessments to abutting landowners or sales taxes now or hereafter lawfully levied. Section 11. REI~0RDS AND REPORTS. A. Book of Account. The Cooperative shall keep complete end accurate books of accounts and records of its business and operations from which Gross Receipts may be determined. To the extent practicable, copies of relevant portions of such books of accounts and records shall be made available at the Cooperative's office nearest to the City upon reasonable request. B. .Access by City. The City Manager or his duly designated officers, agents, or representatives, shall have access to ail books of accounts and records of the Cooperative relating to this franchise as reasonably needed to determine the accuracy of any and all repot? re~ting to your receipts to the City. Any confidential or proprietary matters disclosed to the City shall be held in confidence and disclosed only as needed to enforce the City's rights under this ordinance. Section 12. AREA OF THE CITY AFFECTED. A. This franchise shall extend to and include any and all territory that is within the corporate limits that have been certificated to the Cooperative by the Public Utility Commission of Texas. The territory is more particularly described in Exhibit "A", attached hereto and incorporated herein by reference. B. Additionally, this franchise shall extend to any and all territory which is annexed by the city during the term of this franchise and certificated to the Cooperative by the Public Utility Commission of Texas. In the event of disannexation, this franchise shall be reduced to the territory that continues to be in the City. C. The City shall promptly furnish the Cooperative with maps of the affected franchise area in the event of an annexation or disannexation. Within sixty (60) days from the date such maps are furnished, the Cooperative shall identify all customers located within such annexed or disannexed territory and adjust its accounting system accordingly. For the purposes of calculating Gross Receipts, customers, if any, included within an annexed area shall be deemed to commence sixty (60) days from the date the City furnishes the maps to the Cooperative. Section 13. NON-EXCLUSIVE FRANCHISE. Nothing contained in this ordinance shall ever be construed as conferring upon the Cooperative and exclusive rights or privileges of any nature whatsoever. Section 14. DEFAULT; REMEDIES. In addition to all rights and powers of the City by virtue of this franchise or otherwise, the City reserves the rights to terminate and cancel this franchise in accordance with the following provisions: A. Violation of Provisions. This franchise may be terminated by the City in the event the Cooperative shall by act or omission violate any term, condition or provision of this franchise and shall fail or refuse to effect compliance within thirty (30) days following written demand by the City to do so. B. .Method of Termination and Cancellation. Any such termination and cancellation of this franchise shall be by ordinance adopted by City Council; provided, however, before any such ordinance is adopted, the Cooperative shall be given at least thirty (30) days' advance written notice, which notice shall set forth the causes and reasons for the proposed termination and cancellation, shall advise 10 Section 18. PUBLICATION COST. The Cooperative shall pay the cost of those publications of this franchise required by such Charter provisions. Section 19. SEVERABILITY. If any provisions, section, subsection, sentence, clause, or phrase of this ordinance is for any reason held to be unconstitutional, void, or invalid (or for any reason unenforceable), to the extent practicable, the validity of the remaining portions of this franchise shall not be affected thereby, it being the intent of the City in adopting this ordinance that so long as practicable no portion hereof or provision hereof shall become inoperative or fail by reason of any unconstitutionality or invalidity of any other portion, provision, or regulation, and to this end, all provisions of this ordinance are declared to be severable. If a modification of this ordinance by severance of valid provisions from invalid provisions results in an ordinance that is not practicable, in the opinion of either party, then the parties agree to meet promptly and discuss any necessary amendments or modifications to this ordinance. If the parties are unable to agree on necessary amendments or modifications within a reasonable period of time, then this ordinance may be terminated by either party by providing thirty (30) days' written notice to the other. Section 21. OTHER ISSUES. A. .Work by Others. (a) The City reserves the right to lay, and permit to be laid, sewer, gas, water, and other pipe 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 street, alley, highway, easement or public place occupied by the Cooperative. The City also reserves the right to change any curb or sidewalk of a street. (b) In the event that the governing body of the City authorizes someone other than the Cooperative to occupy space under the surface of any street, alley, highway, or public place, such grant shall be subject to the rights herein granted or heretofore obtained by the Cooperative. In the event that the governing body of the City shall close or abandon any street, alley, highway, or public place which contains existing facilities of the Cooperative, any conveyance of land within such closed or abandoned street, alley, highway, or public place shall be subject to the rights herein granted or heretofore obtained by Cooperative; provided that the Cooperative may be ordered to vacate any land so conveyed, if an alternate route is practicable, and if the Cooperative is reimbursed by the person 12 to whom the property is conveyed for the reasonable costs of removal and relocation of facilities. B. .Availability; Character of Service: Cooperative agrees to use reasonable efforts at all times to furnish service which is modern and sufficient to meet reasonable demands without undue interruption or fluctuations to all persons, firms or corporations that request service and the availability of such service shall be limited by all applicable laws, rules and regulations imposed upon Cooperative as well as the customer's compliance with the requirements of Cooperative for obtaining such service. This provision does not create a cause of action or liability for the benefit of a third part but is solely for the benefit of the Cooperative and City. C. _Future Contingencies. Except as provided in paragraph G of this Section 20, the parties agree to meet and negotiate in good faith to adjust the fees and make other appropriate modifications to this franchise as may be commercially reasonable under the circumstances if: 1) at that time the provision regarding the fees charged or any other provision in this franchise is no longer commercially reasonable or competitive under the circumstances then existing; 2) there has been a change in the rules, regulations, or other laws which materially impact: (a) upon the providing of utility services within towns and cities, or (b) upon the use of public right-of-ways; or (c) upon the rights, duties or obligations of the parties to franchise agreements such as this Franchise. 3) This franchise or any part of this franchise, including any procedure provided or charge imposed becomes or is declared or determined to be excessive, unrecoverable, unenforceable, void or unlawful by a judicial, administrative or legislative authority. D. _.Notice. All payments, notices, demands, or requests from one party to another shall be personally delivered or sent by United States mail certified, or registered, return receipt requested, postage prepaid, to the addresses stated in this Section: !fto City: 5151 North Colony Blvd. The Colony, Texas 75056 13 Attention: City Manager FacsimileN6.: (972) 624-2298 If to Cooperative: Denton County Electric Cooperative, Inc. Attention: Bill McGinnis 3501 FM2181 Corinth, Texas 76205 Facsimile No. : (940) 321-6688 With copy to: Don Richards McWhorter, Cobb and Johnson, L.L.P. P.O. Box 2547 Lubbock, Texas 79408 Facsimile No. : (806) 762-8014 Notice shall be deemed to have been given (i) if by hand delivery, at the time of delivery, or (ii) if mailed, seventy-two (72) hours after the deposit of same in any United States mail post office box in the State to which the notice is addressed or ninety-six (96) hours after the deposit in any such post office box in other than the State to which the notice is addressed, postage paid, addressed as set forth above. The addresses and addressees for the purpose of this Section may be changed by giving notice of such change in the manner herein provided for giving notice. Unless and until such written notice is received the last addresses and addressee stated by written notice, or provided herein if no written notice of change has been sent or received, shall be deemed to continue in effect for all purposes hereunder. E. Authority. The officers and/or agents of the parties hereto executing this franchise and the acceptance hereof are the properly authorized officials and have the necessary authority to execute this agreement on behalf of the parties hereto, and each party hereby certifies to the other that any necessary resolutions or other act extending such authority have been duly passed and are now in full force and effect. F. Alternate Dispute Resolution 1) Notwithstanding any other provision of this franchise, the Parties hereto agree that any claim, cause of action or other dispute based upon or arising out of this franchise (a "dispute") shall be conducted, decided, determined and/or resolved pursuant to and in accordance with the provisions of' this section. The parties desire to resolve disputes arising out of this franchise without litigation. Accordingly, in the event of any dispute hereunder, the 14 Parties hereto agree to attempt in good faith to resolve any dispute arising under this franchise. The parties intend that these negotiations be conducted by non-lawyer, business representatives. 2) Except for action seeking a temporary restraining order or injunction related to the purposes of this franchise, or suit to compel compliance with this dispute resolution process, the parties agree to use the following alternative dispute resolution procedure, and also agree not to sue any party to this franchise \with respect to any controversy or claim arising out of or relating to this franchise or its breach prior to exhausting the procedures set out in this section. 3) If the parties are unable to settle their dispute within sixty (60) days of the initial request, either party may, on written notice to the other part, initiate non-binding mediation of the dispute before a single mediator in Denton County, Texas mutually agreeable to the parties. Mediation is a forum in which an impartial person, the mediator, facilitates communication between the parties to promote reconciliation, settlement, or understanding among them. A mediator may not impose his own judgment on the issues for that of the parties. Unless expressly authorized by the parties, the mediator may not disclose to either party information given in confidence by the other and shall at all times maintain confidentiality with respect to communications relating to the subject matter of the dispute. Unless the parties agree otherwise, all matters, including the conduct and demeanor of the parties and their counsel during mediation, are confidential and shall be inadmissible as settlement discussion pursuant to Rule 408 of the Federal rules of Evidence or the applicable state rules. The mediator shall be selected by agreement of the parties within thirty (30) days after each party first requests mediation of the other. If a single mediator cannot be agreed upon, then each party shall select its own mediator from those on the Judicial Arbitration and Mediation Services' approved list; those two mediators will then select a third independent mediator who will conduct the mediation session(s). The mediator's fees will be borne equally by both parties. In the event mediation is requested, the applicable statutes of limitations shall be automatically tolled until the mediator declares an impasse. In the event mediation fails, the parties may then resort to means outside the scope of this section. 15 G. The City Council hereby expressly reserves the right, power and authority as may be provided by law to fully regulate and fix the rates and charges for the services of the Cooperative 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 and subject to Cooperative's rights of appeal under the Public Utility Regulatory Act, as amended. Section 21. ACCEPTANCE OF FRANClqSE Cooperative shall, within thirty (30) days from the passage of this franchise, file in the office of the City Secretary 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 the Colony: Denton County Electric Cooperative, acting by and through the undersigned authorized officer, hereby accepts Ordinance No. 98-1048 granting a franchise to Denton County Electric Cooperative. Authorized Representative DENTON COUNTY ELECTRIC COOPERATIVE, INC. This ordinance shall be in full force and effect from and at, er its passage, publication and written acceptance by Cooperative as above specified and it is so ordained. PASSED AND APPROVED this 6th day of April 1998. ATTEST: ~~_~ Mayor Pro-tem, City of The Colony, Texas City Secretary Acceptance filed in the office of the City Secretary of The Colony as, this day of , A.D. 19 City Secretary 16 TO THE HONORABLE MAYOR AND CITY COUNCIL OF THE CITY OF THE COLONY: Denton County Electric Cooperative, acting by and through the undersigned authorized officer, hereby accepts Ordinance No. 98-1t~48 granting a franchise to Denton County Electric Cooperative. Authorized Repr~sentat~e DENTON COUNTY ELECTRIC COOPERATIVE, INC.