Loading...
HomeMy WebLinkAboutOrdinance - 2006-O0023 - Ordinance Granting SPEC The Right To Erect, Construct, Maintain, Extend, Repair - 02/24/2006First Reading February 24, 2006 Item. Ro. 6.13 ORDINANCE NO. 2006-oo023 FRANCHISE AGREEMENT Second Reading March 23, 2006 Itea Ro. 5.3 AN ORDINANCE GRANTING TO SOUTH PLAINS ELECTRIC COOPERATIVE, INC. ("SPEC") THE RIGHT, PRNll.EGE AND FRANCHISE TO CONDUCT WITHIN THE CITY OF LUBBOCK, TEXAS, AN ELECTRICAL LIGHTING AND POWER BUSINESS AND TO ENTER UPON, ERECT, CONSTRUCT, MAINTAIN, EXTEND, REPAIR, REPLACE AND REMOVE IN, UNDER, UPON, WITHIN, OVER, ABOVE, ACROSS AND ALONG ANY AND ALL OF THE PRESENT AND FUTURE PUBLIC ROADS, HIGHWAYS, STREETS, LANES, AND ALLEYS OF THE CITY OF LUBBOCK, A SYSTEM OF POLES, POLE LINES, TOWERS, DISTRIBUTION LINES, TRANSMISSION LINES, WIRES, GUYS, CABLES, CONDUITS, TRANSFORMERS, AND OTHER DISTRIBUTION AND TRANSMISSION EQUIPMENT, FACILITIES AND APPURTENANCES NECESSARY OR PROPER FOR THE TRANSMISSION AND DISTRIBUTION OF ELECTRICITY INTO, IN, WITHIN, FROM, ACROSS, AND THROUGH THE CITY OF LUBBOCK, AS NOW EXISTING, OR AS SAID CITY LIMITS MAY HEREAFTER BE EXTENDED; AND GRANTING SPEC, ITS SUCCESSORS AND ASSIGNS, THE AUTHORITY TO USE SUCH FOR THE PURPOSE OF TRANSMISSION, DISTRIBUTION, DELIVERY AND SALE OF ELECTRICITY TO THE CITY, AND TO THE INHABITANTS OF THE CITY, OR ANY OTHER PERSON OR PERSONS, FJRMS OR CORPORATIONS, WHEREVER LOCATED WITHIN OR WITHOUT THE CITY LIMJTS OF LUBBOCK, FOR USE BY SUCH PURCHASER OR PURCHASERS FOR ANY PURPOSE AUTHORIZED BY LAW FOR WHICH ELECTRICITY MAY BE USED OR FOR ANY OTHER PURPOSE OR USE WHICH IS OR MAY BECOME NORMAL OR CUSTOMARY IN THE RETAIL ELECTRIC INDUSTRY IN TEXAS; PROVIDING THAT THIS FRANCHISE SHALL BE EFFECTIVE FOR A PERIOD OF TWENTY (20) YEARS COMMENCING UPON AND EXTENDING FROM THE EFFECTIVE DATE OF THIS ORDINANCE AFTER FINAL PASSAGE HEREOF; PROVIDING FOR THE TEMPORARY REMOVAL, RAISING OR LOWERING BY SPEC OF ITS WIRES AND OTHER APPURTENANCES; PROVIDING FOR THE RIGHT TO, AND CONDITION OF, THE OPENING OF PAVEMENTS AND SIDEWALKS BY SPEC; RETAINING ALL RIGHTS OF CITY TO REGULATE THE LOCATION OF SPEC'S FACILITIES IN, UPON, ALONG, UNDER Al'··ID OVER THE STREETS, ALLEYS AND OTHER PUBLIC PLACES OF CITY, AS WELL AS TO REQUIRE THE RELOCATION OF SAME; PROVIDING FOR EFFICIENT ELECTRICAL SERVICE AND THE MAINTAINING OF SPEC'S FACILITIES; PROVIDING FOR THE USE BY CITY FOR THE PURPOSES SPECIFIED OF POLES AND CONDUITS OF SPEC; PROVIDING COMPENSATION, AND METHOD OF PAYMENT OF SUCH, TO THE CITY FOR THE USE BY SPEC OF THE STREETS, ALLEYS AND PUBLIC WAYS OF THE CITY, AND FOR SPEC'S Page 1 of17 RECOVERY OF SUCH FEE; PROVIDING FOR THE MAINTAINING OF RECORDS BY SPEC WITH RIGHT OF INSPECTION BY CITY; RESERVING TO CITY ALL POWERS OF REGULATION; PROHIBITING ASSIGNMENT EXCEPT BY CONSENT BY CITY EXCEPT IN CERTAIN CASES; GIVING CITY'S CONSENT TO THE CUTTING AND TRIMMING BY SPEC OF CONFLICTING TREES; PROVIDING A SEVERABILITY CLAUSE; PROVIDING THAT THIS FRANCHISE SHALL NOT BE EXCLUSIVE; MAKING MISCELLANEOUS PROVISIONS RELATIVE TO THIS GRANT OF FRANCHISE; REPEALING ALL PREVIOUS ELECTRICAL LIGHTING AND POWER FRANCHISE ORDINANCES AND RELATED RELEASE; AND PROVIDING FOR THE PUBLICATION OF THIS FRANCHISE ORDINANCE AND ITS ACCEPTANCE BY SPEC. WHEREAS, the City granted to South Plains Electric Cooperative, Inc. ("SPEC") a franchise to operate and maintain an electric system in the City of Lubbock via Ordinance No. 8871, finally passed by the City Council on February 13, 1986. WHEREAS, the electrical lighting and power franchise previously granted by the City Council of the City of Lubbock expires on March 2, 2006, and it appearing to this Council that the renewal of the franchise that will expire is expedient and wise, and will be ofbenefit to both SPEC and the City of Lubbock; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK, TEXAS: Section 1. Franchise Authorization. That subject to the tenns, conditions, and provisions of this ordinance, the City of Lubbock, Texas, hereinafter referred to as "City", does hereby grant unto South Plains Electric Cooperative, an electric cooperative operating under the laws of the State of Texas, hereinafter referred to as 11SPEC'\ its successors and assigns, the right, privilege and franchise to conduct an electrical lighting and power business within the boundaries of the City of Lubbock, as such boundaries now exist or may hereafter be extended. SPEC shall have the right to enter upon, erect, construct, maintain, extend, repair, replace, and remove in, under, upon, within, over, above, across and along any and all of the present and future public roads, highways, streets, lanes, alleys and other public rights-of-way of Page 2 of 17 the City now or hereafter owned or controlled by the City a system of poles, pole lines, towers, distribution lines, transmission lines, underground and above ground lines, wires, guys, cables, conduits, transformers, and other distribution and transmission equipment, facilities and appurtenances necessary, proper or reasonably needed for the transmission and distribution of electricity and/or communications over its electric lines into, in, within, from, across and through the City as now existing or as the said City limits may hereafter be extended to the extent City is authorized to grant such right. SPEC is authorized to use said poles, lines, towers, wires, guys, conduits, transformers, and other distribution and transmission equipment, facilities and appurtenances for the transmission, distribution, delivery and sale of electricity to the City and to the inhabitants of the City or any other person or persons, firms or corporations wherever located for use by such purchaser or purchasers for any purpose authorized by law for which electricity or electric 1 wirelines may be used or for any other purpose or use which is or may become normal or customary in the retail electric industry in Texas. Section 2. Term and Deregulation. The term of this franchise granted to SPEC shall be for Twenty (20) years from the date the franchise becomes effective as outlined below. The franchise rights and privileges shall be in full force and effect thirty (30) days from the last publication of this Ordinance, provided SPEC has formally accepted this franchise as provided in Section 23. Section 3. Franchise Fee/Payment. As compensation and rental for the use of the streets, alleys and public ways of City in the conduct of its business under this franchise, SPEC shall pay the City each year of the life of this franchise, beginning March 1, 2006, a sum of Page 3 of 17 money equal to five percent (5%) of the annual gross receipts of SPEC derived from its retail electric lighting and power sales for consumption within the corporate limits of the City All amounts payable to the City under this section shall be surcharged to SPEC's I customers taking electric service within the corporate limits of Lubbock. The franchise payments ' shall be due and payable monthly with the first payment to be due and payable on April 15, l 2006. Each subsequent payment shall be due on the 151h day of each month thereafter for the remaining life of this franchise. Each payment shall be based on the gross receipts of SPEC 1 during the preceding calendar month. Said monthly payments above provided shall be exclusive of and in addition to ad valorem taxes. All money due and payable to City by SPEC computed under the terms of the previous franchise shall be payable to the time that computation begins under this franchise. Any and all such payments made by SPEC pursuant to this Section shall be credited on any amount imposed, levied or assessed against SPEC by the City of Lubbock, pursuant to ordinance or otherwise, at any time as a charge (whether designated as rental, tax or otherwise) for the use by SPEC of City's streets, alleys and public ways. The tenn "gross receipts" as herein used, shall include all receipts from the sale of electric lighting and power in SPEC's certificated territory in the corporate limits of Lubbock, Texas and shall also include all fees, commissions, collections, rents, royalties, and any income associated directly or indirectly with the sale of electric lighting and power within the corporate limits of Lubbock, Texas. Notwithstanding the general defmition above, .. gross receipts" shall not include revenues collected for franchise fees, sales taxes or contributions in aid of construction, and does not include accounts written off as uncollectible. Any revenue Page 4 of 17 subsequently received by SPEC that was previously determined to be bad debt by SPEC shall be 1 subject to the franchise fee. It is further understood and agreed to by SPEC that the franchise fee authorized herein shall form the basis for which any franchise fee is authorized and calculated according to state law after retail electric deregulation is authorized by the State of Texas in the region which encompasses the City of Lubbock. This includes, without limitation, Sections 33.008 (b) and 39.402(b) of the Texas Utility Code. All franchise fees that SPEC fails to pay within the time period specified in this section shall bear interest according to the following formula: for the period January 1 through June 30, the prime rate last published in the Money Rates Section of the Wall Street Journal, Southwest Edition, in the preceding December (the "Prime Rate"} plus two percent (2%); and for the period from July 1 through December 31, the prime rate last published in the Money Rates Section of the Wall Street Journal, Southwest Edition, in the preceding June, plus two percent (2%). Section 4. Facility Location and Removal. Within the streets or other public rights-of- way of the City, the location and route of all poles, stubs, guys, anchors, lines, conduits, pedestals, underground duct lines, manholes, and cables placed and constructed and to be placed and constructed by SPEC in the construction and maintenance of its electrical lighting and power system in, within, through, or under the streets, alleys, or other public rights-of-way of the City shall be subject to reasonable and proper regulation, control and direction of the City, or of the City official to whom such duties have been or may be delegated, including the obligation of SPEC to obtain any and all necessary permits as required by the City. Page 5 of17 All poles, guys or anchors erected by SPEC shall be so set that they will not cause diversion of surface waters in any gutter or drain so as to cause damage to adjoining property, and so that the same will interfere as little as practicable with the ordinary travel on the streets, sidewalks and other public rights-of-way of the City. The regulation and control reserved by the City in this Section shall include, without limitation, the right of the City to require SPEC, at SPEC's expense, to relocate its poles, lines or conduits so as to permit the following activities undertaken by the City on its behalf: a. The widening or straightening of any street, alley or public right-of-way located within the City. b. The closing, opening or relocation of any street, alley or public right-of-way within the City. c. The location or relocation of any water, sewer or drainage lines or other public improvements within the City. d. The changing of grade of any street, alley, curb, sidewalk or other public right-of- way within the City. e. The construction, location and maintenance of parks and other public improvements owned by the City of Lubbock located within the City. In all cases where SPEC is required to relocate, change the route of or the position of the poles, lines or the conduits, the City shall provide thirty (30) days advance written notice to SPEC specifying the new location, route, or position of the poles, lines, or conduits involved. SPEC shall relocate, change the route of or position of the poles, lines or the conduits within thirty (30) days of receiving notice unless the City Manager or his designee agrees, in writing, to an alternate time period. SPEC shall be entitled to be paid for its cost and expenses of any relocation, raising or lowering of its wires, required by the City, pursuant to this Section or Section 5, only if such expenses or costs are reimbursable or payable to SPEC or the City by the State of Texas, the United States or any governmental agency or subdivision of either, whether Page 6 of17 directly or indirectly. However, nothing herein shall impose any obligation on the City to pay such costs and expenses except to the extent it actually receives funds from the United States, the State of Texas, or any governmental agency or subdivision of either, for the reimbursement or payment of same. The provisions of this section shall not apply to improvements made by SPEC on private easements purchased by SPEC and recorded prior to any dedication of any street, alley or public way. In this latter event SPEC shall be reimbursed its costs and expenses of relocating facilities. SPEC shall, at its own expense, promptly remove any and all poles, stubs, guys, anchors, lines, conduits, pedestals, underground duct lines, manholes, cables or other property or equipment owned by SPEC (collectively referred to in the paragraph as "Property'') located in the streets, alleys or other public right-of-ways that is no longer in service or being used by SPEC. In the event SPEC fails to remove the Property as required herein within thirty (30) days of receiving written notice from the City Manager or his designee to remove the Property from the streets, alleys or other public right-of-ways, the City may remove the Property and return it to SPEC's place of business in the city of Lubbock and assess the cost of removing the Property to SPEC. Section 5. Temporary Relocation. SPEC, on written reasonable request of any responsible person, firm, corporation or governmental authority, shall relocate, raise or lower its wires, where located on, in, or over the streets, alleys and other public ways of City, temporarily to permit construction work in the vicinity thereof, or to permit the moving of houses or other bulky structures. The expense of such temporary relocation, raising or lowering of such wires shall be paid by the benefitted party or parties, and SPEC may require the payment in advance, being without obligation to remove, raise or lower its wires until such payment shall be made; Page 7 of17 provided, however, that no such payment shall be required of the City except as provided in Section 4. SPEC shall be given not less than seventy-two (72) hours prior written notice to arrange for such temporary wire changes. Section 6. Pavement Excavation and Construction. If it becomes necessary in furnishing electricity as contemplated under this franchise, the City grants to SPEC the right and privilege to take up pavements and sidewalks, if any, in and upon said streets, alleys, highways or other public right-of-ways in said City for the purpose of making such excavation and installation as may be necessary; provided, however, that SPEC shall not take up or excavate any pavement at any time without frrst securing the written permission of the City Manager or his designated representative, which permission will not be unreasonably withheld; and provided further, that all excavations and installations so made shall be performed in such manner as will cause the least reasonable inconvenience to the public, and SPEC shall promptly restore or cause to be restored to as good condition as before working thereon all such pavements, sidewalks, streets, alleys, highways or other public right-of-ways excavated by it to the reasonable satisfaction of the City Manager or his designated representative, expeditiously, and in accordance to any and all applicable compaction standards or regulations adopted by the City. Section 7. Waiver. If any of the facilities installed by SPEC hereunder shall be in any respect damaged or injured by the City or any of its officers, agents, representatives, or employees, in connection with the performance of any work or repairs that may be done upon the streets, avenues, alleys and other public places of the City of Lubbock, but not including work or repair for or related to the City's municipally owned electric utility, SPEC shall not be entitled to prosecute or maintain a claim against the City of Lubbock for any such damage or injury so sustained by it, except where such damages are the result of willful acts or gross negligence of Page 8 of 17 the officers, agents, representatives or employees of City, and said right is hereby waived; provided, however, this section shall not apply where such property is damaged or injured as a proximate result of installing, maintaining or removing City's equipment upon or from SPEC's poles, or in or from SPEC's ductlines, as provided in Section 11 hereof. Section 8. City's Sovereignty. The City, by the granting of this franchise, does not surrender or to any extent lose, waive, imperil or lessen the lawful powers and rights now or hereinafter vested in the City under the Constitution and Statutes of the State of Texas and under the Charter of the City to regulate the rates for services of SPEC; and SPEC, by its acceptance of this franchise, agrees that all such lawful regulatory power and rights as the same may be from time to time vested in the City shall be in full force and effect and subject to the exercise thereof by the City at the City's discretion. Notwithstanding anything contained in this ordinance to the contrary, all work done in connection with the construction, repair, maintenance and operation of all facilities of SPEC is subject to the continuing police power of the City; and SPEC shall comply with all present and future laws, ordinances and regulations, except when such compliance is in conflict with that authority specifically surrendered by the City herein. Section 9. Electric Service Provided. SPEC is obliged under this franchise to furnish efficient electrical service at industry standards for the area. SPEC shall serve every eligible consumer in the franchise of SPEC regardless of cost, amount of usage, customer deposits, return on investment, access and other reasonable factors. SPEC shall not discriminate against any person, corporation, firm, or association in the charge for such electrical current or in the service rendered under like circumstances. Nothing in this Section 9 shall be construed to limit or prohibit the assessment by SPEC of reasonable charges in aid of construction in accordance with Page 9 of 17 SPEC's standard extension policies. SPEC shall not directly or indirectly grant any discount or rebate, or give things of value to circumvent the rate schedule as approved by the appropriate regulatory authority. Section 10. Non-exclusivity. Nothing contained in this Ordinance shall be construed as conferring upon SPEC any exclusive rights or privileges of any nature whatsoever. Section 11. City Use of SPEC's Pole/Duct Space. In addition to the consideration set forth elsewhere in this ordinance, SPEC shall hereafter hold itself ready to furnish free of charge, subject to the use of the City, such pole space as may be reasonably required from time to time for the installation of City-owned street light equipment, traffic, police and fire alarm system conductors, and alarm or other necessary signal boxes, data transmission and telecommunication equipment; provided that such space used by the City does not exceed the capacity of one cross- arm space on any one pole, and provided that such space is available on existing poles and has been requested three (3) days in advance in writing by the City Manager or his designated representative prior to installation of SPEC facilities hereunder placed within any street, alley or public way. The specific location of the street light equipment, and police and fire alarm conductors and boxes on SPEC 's poles shall be determined by SPEC, and will be allotted at the time specific applications for space are received from the City. Where a main underground ductline is hereafter constructed or installed between manholes by SPEC, SPEC shall, as a part of same, provide free space for the installation by City of its traffic, police or fire alarm cables, on request in writing by City Manager or his designated representative prior to construction, one top duct having one capped off entry channel and one capped off exit channel between each two manholes, such entry and exit channels leaving the duct bank enclosure outside of, but near to, such manholes, and no cable or other equipment of City shall enter SPEC's manholes. SPEC Page 10 of 17 shall, prior to each addition by it to any duct now existing or hereafter constructed, notify the City Manager or his designated representative of City of the nature and location of such intended addition~ further, SPEC shall, along with its application for a permit to open a street for the purpose of laying a new duct, provide the City Manager and the City Engineer's Office each with a set of plans showing the type, number, and location in the street, of the ducts to be constructed. City, prior to the original installation by it of its equipment in any such top duct, shall notify SPEC three (3) days in advance of the time and place it intends to make such entry and installation. All cables installed by the City in SPEC ducts shall be of the non-metallic, sheathy type to prevent corrosive or electrolytic action between the City and SPEC-owned cables. All City-owned conductors and cables, whether on poles or in ductlines, shall be constructed, maintained and operated in such manner as to not interfere with or create a hazard in the operation of SPEC's electrical transmission and distribution system. Further, all City-owned traffic, police and fire alarm conductors, and alarm boxes, and any City circuits on SPEC poles, and all cables installed by City in ducts constructed by SPEC, shall be installed in strict compliance with the applicable provisions of the National Electrical Safety Code and other applicable federal, state and local codes. Provided further, that no part or portion of this Section shall ever be construed as requiring SPEC to make any additional expenditure over and above its normal and ordinary cost, and if the City's requirements hereunder cause an additional cost or expense in enlarging, removing, adding to or otherwise changing SPEC's facilities, City shall reimburse SPEC for the full amount of such costs. SPEC shall not in any case be liable for damages or claims of damages to any person or persons arising from or growing out of the attachment of City's equipment, or arising from or growing out of the construction, operation or maintenance of such Page 11 of17 facilities. The City further agrees to indemnify and hold SPEC harmless from any and all damages or claims for damages by reason of the construction, maintenance or operation by the City of the City's facilities as set forth in this Section. Section 12. Annual Receipts Report/Right to Audit. SPEC shall on the 1st day of February of each year of the life of this franchise, file or cause to be filed, a statement, certified by SPEC's external auditor and a duly qualified officer of SPEC, showing the gross receipts of SPEC within the City of Lubbock (as defined above) during the twelve months ending on the 31st day of December immediately preceding. For the purpose of determining the amount of the gross receipts of SPEC, SPEC shall keep in its office at the disposal of and open to inspection by any auditor authorized and appointed by City at all reasonable times, books of accounts and other records showing a full, true, complete and accurate account of the gross receipts of SPEC from its electric lighting and power sales for consumption within the corporate limits of the City for the prior three calendar years. Section 13 . Indemnification. SPEC shall indemnify and save the City harmless from all claims, demands or causes of action brought against the City occasioned by or arising out of the construction, reconstruction, maintenance, or repair of SPEC's electrical lighting and power system, or in any way growing out of the granting of this franchise either directly or indirectly; provided, however, that the provisions of this Section shall not be applicable to any claims, damages, actions or causes of actions proximately resulting from the use by City, its officers, agents, representatives or employees, of SPEC's poles and ductlines for the installation, maintenance or removal of City's equipment, as provided in Section 11, or for which the City is otherwise liable as provided herein. Page 12 ofl7 Section 14. Authority. In granting this franchise it is understood that the lawful power vested by law in the City to require all persons or corporations to discharge the duties and undertaking for the performance of which this franchise was made, is reserved; this grant is made subject to all the rights, powers and authorities either of regulation or otherwise reserved to the City by its Charter or by the general laws ofthe State. Section 15. Assignment/Transfer of Franchise. The rights, franchises and privileges hereby granted shall not be transferred or assigned by SPEC except with the consent of the City Council of the City of Lubbock expressed by Ordinance passed by the City CounciL Section 16. Tree Trimming. To the extent that the City has authority to do so, it gives to SPEC, during the life of this franchise, the right, license, privilege and permission to trim trees upon and overhanging the streets, alleys, sidewalks and public places of City, so as to prevent the branches of such trees from coming in contact with the wires or other equipment of SPEC. SPEC agrees that it will fully protect and indemnify City from any and all claims, demands, actions, causes of actions, damages and expenses arising because of such trimming by SPEC under the provisions of this Section. Section 17. Notice of Default. The franchise rights and privileges hereinabove granted to SPEC, its successors and assigns are and shall be at all times, during the term and life of this franchise, contingent upon the faithful and punctual performance of and compliance with all acts, requirements and provisions of this Ordinance, and any amendment hereof, by SPEC, its officers, agents and employees on its part to be performed, complied with and abided by, and if at any time SPEC shall refuse or fail to keep, perform, comply with and abide by all and singular the acts, requirements and provisions of this Ordinance, or any amendment, within sixty (60) days from receipt of written notice from the City Manager setting forth in detail the facts Page 13 of 17 constituting default of SPEC and what is required to cure such default; and upon continued 1 failure of SPEC to keep, perform, comply with and abide by such acts, requirements and provisions of this Ordinance or any amendment or failure to cure the default set forth in such written notice, the City Council may terminate, at its option, this franchise and all privileges and rights herein granted to said SPEC. The notice herein mentioned shall be sufficient, if given to the Manager of SPEC in charge of its main office in the City of Lubbock. Section 18. Removal ofDangerous Objects. The City shall have power at any time to require SPEC to remove and abate at its own expense any installation or structure that is dangerous to life or property, and in case SPEC, after reasonable notice, fails or refuses to act, the City shall have the power using reasonable means and methods to remove or abate the same at expense of SPEC, all without compensation or liability for damages to SPEC. Section 19. Severability. If any provision, 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), the validity of the remaining portions of this Ordinance shall not be affected thereby. Section 20. Right of First Refusal. In the event that SPEC should desire to sell, market or advertise for sale, SPEC's distribution system within the corporate limits of the City, then, and in that event, SPEC shall, prior to selling its distribution system to any unaffiliated third party, notify the City of the availability of SPEC 's distribution system. The City shall, within thirty (30) days of the receipt of such notice, provide SPEC written notice of the City's intention to purchase SPEC's distribution system. If the City provides SPEC with written confirmation of its intention to purchase SPEC's distribution system the City shall have an additional sixty (60) days to exercise due diligence and enter into a contract with SPEC to purchase the entire distribution Page 14 of 17 system belonging to SPEC within the co~porate limits of the City upon terms and conditions mutually agreeable to the City and SPEC. This Right of First Refusal shall be subject to any preexisting liens or rights of first refusal granted by SPEC prior to the execution date of this Ordinance. Section 21. Subsequent Legislative Regulatory Action. If, during the term of this Agreement, the legislature for the State of Texas or the United States of America or the Texas Public Utility Commission or other governmental authority having jurisdiction over the establishment of franchise fees passes any statute, rule or regulation ("Governmental Action") which would decrease the franchise fees below the amount established by this Agreement or would expressly prohibit the imposition by the City of the Right of First Refusal as set forth in Section 20 above, then this Agreement shall be deemed to be automatically amended, as of the effective date of such Governmental Action, to provide for the lesser rate as established by such Govemmental Action and, if applicable, to void the provision for the Right of First Refusal contained herein. Any provision in such Governmental Action which would "grandfather" any existing agreements shall be disregarded for the purposes of this Section 21 and any decreases in the franchise fees shall take effect immediately upon the stated effective date of the Governmental Action as if no existing franchise Ordinance were in place. Section 22. Prior Franchise Repealed and Release. This franchise replaces all former franchise ordinances granted to SPEC or its predecessors, which are hereby repealed, which repeal is effective as of the time the franchise herein granted takes effect. There is specifically and particularly repealed, effective as of that time, Ordinance No. 8871 passed by the City of Lubbock on the second reading on February 13, 1986. Page 15 of 17 Section 23. Final Passage/Acceptance. SPEC shall, within thirty (30) days from the date of the final passage of this Ordinance by the City Council of the City of Lubbock, file with the City Secretary of Lubbock, a written statement signed in its name and behalf by an officer of SPEC duly authorized by its Board of Directors in the following form: 11The Honorable Mayor and the City Council of the City of Lubbock: 11South Plains Electric Cooperative, for itself, its successors and assigns, hereby accepts the attached Ordinance finally passed by the City Council of Lubbock, the day of ______ , 2006, and agrees to be bound by all of its terms and provisions. South Plains Electric Cooperative By: _______________________ _ (Office) "Dated the ___ day of ______ __7 2006." The full text of this Ordinance shall, after finally proposed to be passed by the City Council of the City of Lubbock, be published once a week for three (3) consecutive weeks in a newspaper of general circulation published in the City of Lubbock, and the expense of such publication shall be borne by SPEC. Upon said publication being completed and the acceptance of this Ordinance by SPEC as herein provided, this Ordinance shall take effect thirty (30) days after its last publication, except as may be hereinabove otherwise povided. Page 16 of 17 AND IT IS SO ORDERED. Passed by City Council on first reading this 24tli day of __ F'"-'e=b=ru.a=ry~--' 2006. Passed by City Council of second reading this 23rd day of __ Ma_r_ch __ _,, 2006. TOM MARTIN, MAYOR PROTEM ATTEST: APPROVED AS TO CONTENT: APPROVED AS TO FORM: 1:\\ccdocs\SPEC franchise Page 17 of17