HomeMy WebLinkAbout028022 ORD - 01/13/2009Execution Version
AN ORDINANCE
GRANTING TO AEP TEXAS CENTRAL COMPANY, ITS SUCCESSORS
AND ASSIGNS, A NON-EXCLUSIVE FRANCHISE TO CONSTRUCT,
MAINTAIN AND OPERATE LINES AND APPURTENANCES AND
APPLIANCES FOR CONDUCTING ELECTRICITY IN, OVER, UNDER AND
THROUGH THE STREETS, AVENUES, ALLEYS AND PUBLIC RIGHTS-OF-
WAY OF THE CITY OF CORPUS CHRISTI, TEXAS
WHEREAS, AEP Texas Central Company, (hereinafter "AEP") has been engaged in
the electric power business in the State of Texas and the City of Corpus Christi (hereinafter
the "City") for many years; and,
WHEREAS, AEP has operated under franchises from the City for many years, and it
is to the mutual benefit of AEP and the City that the City renew its grant of a franchise to
AEP under the terms and conditions contained herein.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF CORPUS CHRISTI, TEXAS, THAT:
SECTION 1. Grant of Franchise. Pursuant to Article IX of its Charter and other
applicable law, City hereby grants to AEP and its successors and assigns the non-exclusive
right, privilege, franchise, and authority to set, erect, construct, support, attach, connect,
extend, and stretch Facilities between, and maintain and operate and use lines and other
Facilities in, above, under, across, and along the Public Rights -of -Way of the City, as the
same now exist or may hereafter be laid out, in the City of Corpus Christi, Texas, for the
transmission and distribution of electric energy and services incidental thereto either by
means of overhead or underground conductors, with all necessary or desirable appurtenances
and appliances, as currently installed or that may be installed in the future, including but not
limited to: 1) underground conduits, poles, towers, wires and transmission lines, ducts, cables,
braces, guys, anchors, manholes and vaults, transformers, switches, meter -reading devices,
outdoor lighting, and fixtures, 2) communication systems and fiber optic cable and telegraph
and telephone wires for its own use in its delivery of electricity, and 3) any and all other
equipment, appliances, attachments, appurtenances and other items necessary, convenient, or
in any way appertaining to any and all of the foregoing (hereinafter "Facilities") for the
purpose of transmitting and distributing electrical energy to said City and the inhabitants
thereof, and persons and corporations within and beyond the limits thereof, for light, heat,
power and similar purposes (and for broadband over power lines as set forth below) and to
license or lease space on or within the AEP's_poles, conduit and appurtenant facilities for the
attachment of third party facilities required or authorized under applicable law. "Public
Rights -of -Way" shall mean all rights-of-way for public roads, streets, avenues, alleys,
sidewalks, highways, and all other public property of the City as the same now exist or may
be hereafter laid out, platted, dedicated, acquired or improved within the present limits of the
City and as such limits may be hereafter extended; and all utility easements either City
owned, controlled or dedicated for the placement and location of various utilities (whether
over public or private lands), except those dedicated for water, sewer, gas or other specific
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purposes only. Public Rights -of Way also specifically includes public parks, public squares,
greenbelts, green space, drainage easements, and other areas set aside by the City for public
recreation or other public use. The grant made herein is effective only to the extent of the
City's interest in a particular right-of-way; it does not grant any interest lawfully owned or
retained by another person.
This grant does not include the right to use the Public Rights -of -Way to conduct other
businesses such as telecommunications or cable television even though electrical energy may
be used for those purposes. The City acknowledges AEP's right under Texas Utilities Code
Section 43.101(d) to operate a Broadband Over Power Lines ("BPL") System without
additional compensation for so long as such right exists under law. The City reserves its
rights under Texas Utilities Code Section 43.101(e) or other existing or subsequently enacted
laws with respect to BPL.
Notwithstanding the foregoing, the grant herein to use drainage easements is specifically
conditioned upon AEP's securing the City's written consent, through its Director of
Engineering Services: 1) before any new Facilities may be placed in a drainage easement,
and 2) before existing Facilities in a drainage easement may be expanded or altered (does not
include normal maintenance). Before consent is granted, the Director must determine that the
proposed new Facilities or the existing Facilities as expanded or altered, will not unduly
impede the drainage function of the easement and will not unduly impede City access to the
easement for maintenance, including mowing. The Facilities will be located as close as
feasible to the edge of the easement without creating an encroachment on adjoining private
property.
From and after the effective date of this franchise, the placement and location of Facilities in
public parks, public squares, greenbelts, green spaces, and other areas set aside by the City for
public recreation or other public use will be covered under a special permit or specific express
easement granted to AEP for such purposes. Facilities existing in those areas at the
commencement of this franchise shall be exempted from such requirement. Requests for
special permits or specific express easements shall not be unreasonably withheld, so long as
the location and placement of the Facilities does not unreasonably interfere with the City's
use and enjoyment of the area for public recreation or other public purposes.
The right granted to AEP to license or lease space on or within the company's poles, conduit
and appurtenant facilities for the attachment of third party facilities shall not constitute a grant
by the City to the third party to locate and place facilities in, above, under, across, or along the
Public Rights -of -Way nor does it delegate the right to AEP to grant such a right. AEP shall,
within a reasonable time following its acceptance of this franchise and to the extent such
information is available, furnish to City a list of the names, addresses, phone numbers, and
representatives of each person or entity licensing or leasing space on AEP's poles, conduits
and appurtenant facilities for the attachment of third party facilities so that City can ensure
that each such person or entity has been authorized by City to use City property. For the
purposes of this section, "reasonable time" shall not be more than 60 days, unless both AEP
and the City agree to extend the period of time as may be necessary for AEP to comply with
this provision. AEP will update the list annually thereafter. AEP does not warrant the
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accuracy of any such information provided, and to the extent locations of attachment and/or
locations of Facilities are described or shown, such locations of attachment and locations of
Facilities are described or shown in their approximate locations. All information provided
respecting attachments and locations of Facilities shall be used by the City solely for auditing
and managing the Public Rights -of -Way, and City shall take all prudent steps required by
applicable law to prevent disclosure or dissemination of such information, without the prior
express written consent of AEP.
SECTION 2. Term. The franchise granted by this ordinance shall be for a term of
twenty-five (25) years, commencing on January 1, 2003, and expiring on December 31, 2028,
at midnight.
SECTION 3. Construction and Maintenance Activities.
(a) AEP Facilities shall be constructed and maintained in accordance with Good
Utility Practices, as defined by the Public Utility Regulatory Commission of Texas ("PUCT"),
and in conformity with the National Electrical Safety Code ("NESC") and all applicable
federal, state, and local laws and regulations governing operations in the Public Rights of
Way, and so as not to interfere unreasonably with traffic over streets, alleys, and sidewalks,
the flow of storm water in any gutter, drain, sewer, or open drainage system, or with the
City's water, wastewater, storm water and gas utility operations. "Constructed and
maintained" includes installation, construction, relocation, maintenance, repair, and removal.
(b) The surface of any Right -of -Way disturbed by AEP in the construction or
maintenance of its Facilities shall be restored within a reasonable time after the completion of
the work to as near as practical to its original condition as before the commencement of the
work. Absent some independent intervening event or condition beyond AEP's reasonable
control, should the City reasonably determine, within one year from the date of such
restoration, that such surface requires additional restoration work to place it in as near as
practical to its original condition as before the commencement of the work, AEP shall
perform such additional restoration work to the reasonable satisfaction of the City. No Right -
of -Way shall be obstructed for a longer period or to a greater extent than shall be reasonably
necessary to execute all work.
(c) In constructing and maintaining its Facilities, AEP shall not disturb City's street
pavement, water, wastewater, gas, and storm water facilities without the approval of the
City's Director of Engineering, except during an emergency. Other than its regulatory fees
governing excavations, no fees shall be charged by the City for its review and approval, which
shall not be unreasonably withheld, delayed or conditioned so as not to unreasonably interfere
with AEP's obligation to serve or with customer response time. As soon as practicable after
an emergency, AEP shall report the emergency work performed to the Director of
Engineering. AEP shall, at its sole cost and expense, refill and repair (including by repaving
any cut in any pavement or sidewalk) all excavations made by AEP in the Public Rights -of -
Way and all damage to City's streets, water, wastewater, gas, and storm water facilities in
connection with the construction and maintenance of AEP's Facilities. Likewise, City shall,
at its sole cost and expense, refill, repair and return to grade all excavations made by City in
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the Public Rights -of -Way and all damage to AEP's Facilities in connection with the
construction, maintenance and modification of City's Facilities. Provided, however, the
City's liability for damages under this Section 3(c) shall not exceed its limits of liability under
the Texas Tort Claims Act.
(d) AEP shall contain loose dirt and prevent erosion caused by its construction and
maintenance activities, all in accordance with applicable Texas Commission on
Environmental Quality ("TCEQ") storm water regulations.
SECTION 4. Relocations and Securing Facilities.
(a) City reserves the right to construct, maintain, and modify its facilities for City
operations including streets, curbs, sidewalks, water, wastewater, gas, storm water, and
communications for its own use (herein "City Facilities"). City shall give written notice to
AEP whenever City has determined that removal, relocation, change or alteration of AEP's
Facilities is reasonably necessary for construction, maintenance, or modification of City
Facilities. Alteration includes, without limitation, adjusting AEP manholes to a height even
with the street surface. The amount of notice provided to AEP shall be reasonable under the
circumstances, but not less than thirty (30) days. Upon notice by City, AEP shall, temporarily
or permanently, remove, relocate, change or alter the position of AEP's Facilities as soon as
reasonably practical. AEP shall bear the expenses for any removal, relocation, change or
alteration to permit the widening or straightening of a street, in accordance with Section
37.101(c), Texas Utilities Code. City shall bear the expenses for any other City requested
removal, relocation, change or alteration unless applicable state or federal law requires AEP
to bear such expenses. Notwithstanding anything to the contrary herein contained, AEP
agrees to bear the expenses for any removal, relocation, change or alteration of its Facilites
when requested by the City Manager for the City to meet Americans with Disabilities Act
("ADA") compliance when and if the PUCT approves a streamlined regulation mechanism
for including recovery of distribution investments in rates and the AEP capital investments
incurred to meet the City's ADA compliance are recoverable through such streamlined
distribution regulations.
(b) In situations where City does not require removal, relocation, change or alteration
of AEP Facilities, AEP shall take responsibility for securing its poles and facilities during
City operations.
(c) In situations where AEP is required by the City to remove or relocate its Facilities
to accommodate widening or straightening of a street by City, and AEP is eligible under
federal, state, county, City or other local agencies or programs for reimbursement of costs and
expenses incurred by AEP as a result of such removal or relocation and such reimbursement is
required to be handled through the City, AEP's costs and expenses shall be included in any
application by the City for reimbursement, if AEP submits is cost and expense documentation
to the City prior to the filing of the application. City shall provide reasonable notice to AEP
of the deadline for AEP to submit documentation of the costs and expenses of such relocation
to the City.
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(d) As to any removal, relocation, change or alteration of AEP's Facilities whereby
the cost and expense thereof is to be borne by AEP in accordance with this Section 4, AEP
may, after receipt of written notice requesting such removal, relocation, change or alteration,
submit in writing to the City alternatives to City's construction plans, which would obviate
the need for AEP to remove, relocate, change or alter its Facilities. Upon the City's receipt
from AEP of such written alternatives, the City shall evaluate such alternatives and shall
advise AEP in writing if one or more of such alternatives are suitable to accommodate its
needs, which would otherwise necessitate removal, relocation, change or alteration of AEP's
Facilities. In evaluating such alternatives, the City shall give each alternative proposed by
AEP full and fair consideration with due regard to all facts and circumstances which bear
upon the economics and practicality of removing, relocating, changing or altering AEP's
Facilities. The City shall not evaluate alternatives proposed by AEP in an arbitrary or
capricious manner. In the event the City reasonably determines that such alternatives are not
appropriate, then AEP shall remove, relocate, change or alter its Facilities as otherwise
provided herein.
SECTION 5. Consideration.
(a) For and as full consideration and compensation for this franchise and the rights
granted herein and as rental for the use of the Rights -of -Way, AEP shall pay City an amount
authorized by Section 33.008(b) of the Texas Utilities Code, currently the product of a factor
of $0.002417 per kilowatt hour multiplied by the number of kilowatt hours of electricity
delivered by AEP to Retail Customers whose consuming facility's point of delivery is located
within the City, as such charge may be revised from time to time in accordance with Section
33.008(b) of the Texas Utilities Code or any other applicable provision of law regarding
franchise fee payments.
(b) Payments will be made each month throughout the term of the franchise, with
each such payment to be made by electronic funds transfer not later than the first business day
of the second month following the month in which deliveries occurred for the billing cycle for
that month. For example, payment for May 2008 deliveries, which covers a billing cycle
from April 29th through May 28th, would be paid not later than July 1st. With each monthly
payment, AEP shall furnish to the City a report that accurately reflects the number of kilowatt
hours for the month (meaning for the billing cycle for the month) delivered within the city
limits and the charge per kilowatt hour determined in accordance with Section 33.008(b),
Texas Utilities Code, or any alternate methodology upon which the parties have agreed
payments shall be made.
(c) The City shall notify AEP in writing of newly annexed and de -annexed areas. The
notice shall include the ordinance number authorizing the action, an appropriate map
identifying the areas and documentation of the notice to the State of Texas regarding the
annexation or de -annexation. AEP shall have no responsibility for commencing payments to
City for kilowatt hours delivered in newly annexed areas until it shall have received City's
notification. Upon City's notification and starting the 91St day after receipt of such notice,
AEP will commence payments to the City for kilowatt hours delivered in each newly annexed
area and will make any appropriate adjustments in payments reflecting over deliveries of
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kilowatt hours in any prior month resulting from inclusion of kilowatt hours from de -annexed
areas in the calculation of the monthly charge. Payments for deliveries in newly annexed
areas and adjustments for over deliveries in de -annexed areas shall be made back to the
effective date of the ordinance.
SECTION 6. Alternate Compensation.
(a) Under the authority granted by PURA Section 33.008(0, and in consideration of
the City granting AEP a twenty-five (25) year franchise, City and AEP agree to the possible
implementation of a different level of compensation for the use of the Public Rights -of -Way
than that prescribed by PURA Section 33.008(b). City shall have the opportunity to enact a
factor increase by ordinance once every four (4) years during the term of this franchise,
beginning on the date of final approval of this franchise ordinance, provided however, the
total franchise fee factor may not exceed $0.0036255 per kilowatt hour, unless authorized by
other law. Upon written notification of City's passage of such an ordinance, in form and
substance satisfactory to AEP, approving a tariff for the collection and recovery by AEP of a
municipal franchise fee charge equal in amount to the difference between compensation
currently authorized under Section 33.008(b), at $0.002417 per kilowatt hour, plus any
incremental factor amount previously authorized by ordinance, basing the charge on the
product of the currently authorized total factor multiplied by the number of kilowatt hours of
electricity delivered by AEP within the City, and compensation that would be received by the
City basing the charge instead on the new, approved total factor, but not more than
$0.0036255 per kilowatt hour, AEP and City shall amend Section 5 of this franchise
agreement to reflect compensation basing the charge on the new approved total factor, but not
more than $0.0036255 per kilowatt hour. The effective date of the increase in the franchise
fees shall be the effective date of the recovery mechanism (e.g. tariff schedule) for the
collection and recovery of the incremental fee approved by City's ordinance; provided
however, payments for such increased fees shall not commence until 90 days after such
effective date.
(b) The change in the franchise fee rate provided in Subsection (a) above is expressly
conditioned upon AEP's ability to concurrently recover the additional franchise fees paid to
the City. In the event that the PUCT or a court of competent jurisdiction finds that any
portion of the franchise fees calculated in accordance with Subsection (a) above may not be
concurrenity recovered by AEP from customers or in some manner prevents AEP from
recovering said franchise fees, then AEP shall not be obligated to pay to the City any amount
above the amount AEP is allowed to recover from its customers. If the PUCT or a court of
competent jurisdiction orders AEP to refund to customers any amounts collected for franchise
fees paid in accordance with Subsection (a), such amount refunded shall be a credit against
future franchise fees owed by AEP to City.
(c) In the event any regulatory proceeding before any federal or state agency results in
the approval of a more favorable franchise fee amount and/or method of recovery than that
provided by the mechanism set out in this Section 6, the City and AEP agree to the further
amendment of Section 5 to provide for payment in accordance with such approved franchise
fee amount and/or method of recovery.
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(d) City and AEP agree that AEP may, in its sole discretion, support a legislative or
regulatory initiative to provide for the collection and recovery of increased franchise fees, but
in any event, AEP will not oppose such an initiative.
SECTION 7. Indemnity.
(a) AEP shall release, protect, defend, and hold harmless City, its employees, officers,
directors, agents and legal representatives from any and all claims, demands, and liability,
including defense costs and attorneys fees, relating in any way to damages, claims, or fines
arising by reason of or in connection with AEP's, or its contractors', agents', or employees'
actual or alleged negligence in the construction, maintenance, and operation of its Facilities in
the public Rights -of -Way of the City.
(b) To the extent permitted by law, City shall release, protect, defend, and hold
harmless AEP, its employees, officers, directors, agents and legal representatives from any
and all claims, demands, and liability, including defense costs and attorneys fees, relating in
any way to damages, claims, or fines arising by reason of or in connection with City's, or its
contractors', agents', or employees' actual or alleged negligence in exercising the rights
granted City hereunder. Provided, however, the City's liability for an occurrence under this
Section 7(b) shall not exceed its limits of liability under the Texas Tort Claims Act.
SECTION 8. Assignment. This franchise may be transferred in accordance with
Article IX, Section 4 of City's Charter. This franchise shall inure to the benefit of and be
binding upon the transferee.
SECTION 9. Termination. This franchise may be terminated in accordance with
Article IX, Section 5(a) of City's Charter.
SECTION 10. Maps.
(a) Upon the City's reasonable request, on a project -by -project basis, AEP will
provide to the City copies of available maps, plats and drawings in use by AEP showing the
location of its Facilities at locations within the Public Rights -of -Way. To the extent possible,
AEP will provide such information to City in an electronic format, but AEP shall have no
obligation to provide such information in any specific format. As to any such maps, plats and
drawings so provided, AEP does not warrant the accuracy thereof and, to the extent the
locations of the Facilities are shown, such Facilities are shown in their approximate locations.
In addition, AEP and the City agree to share information about additions or modifications to
their Facilities that could reasonably be expected to have a material impact on the other.
(b) Any maps, plats and drawings and/or other information concerning the location of
AEP's Facilities provided by AEP to City shall be used by City solely for management of the
Public Rights -of -Way. City shall take all prudent steps required by applicable law to prevent
disclosure or dissemination of such maps, plats and drawings and/or any other information to
any unauthorized third party, without the prior express written consent of AEP.
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(c) City and AEP agree to meet annually to share their plans for extension of Facilities
to serve the public. The goal of the meeting will be to inform and update one another about
projects in order to reduce cost and effectively provide services for ratepayers and taxpayers.
Participants will include appropriate planning, engineering, and financial representatives of
the parties. Representatives of the Texas Department of Transportation may be invited to
attend, as well as other third party representatives, provided AEP and the City mutually agree.
SECTION 11. Accounting and Audits.
(a) AEP shall maintain adequate books and records relating to the performance of its
obligations under this franchise.
(b) City may cause, upon reasonable notice, an audit to be made of the books and
records of AEP relating to AEP's performance under this franchise only if any such audit
concerns a payment made less than two (2) years before the commencement of such audit in
accordance with Section 33.008(e), Texas Utilities Code, or such other period as may be
subsequently established by applicable state law. In the event City elects to exercise its right
of audit, City shall provide to AEP written notice at least two (2) business days in advance of
the audit. City shall select the auditor. AEP shall make available to the auditor personnel and
records reasonably necessary to complete the audit. AEP shall answer questions and provide
records or information within a reasonable period of time under the circumstances, including
records maintained outside Corpus Christi. City shall bear the cost of the audit; provided that
AEP shall bear the cost if the audit reveals underpayment of fees of more than three and one-
half percent during the audit period. City and AEP shall meet and attempt in good faith to
resolve any disputed issues arising from the audit report. Any underpayments discovered as a
result of the audit shall be promptly paid by AEP, and likewise, City shall promptly refund
any overpayments discovered.
SECTION 12. Underground Electric Distribution Lines.
AEP acknowledges the City's desire to promote a policy of undergrounding Facilities
within the Public Rights -of -Way whenever possible. The City acknowledges that the
Facilities Extension Schedule of AEP's approved Tariff for Electric Delivery Service
("Tariff") provides that electric service will be provided to Retail Customers utilizing
construction with standard facilities, which consist of overhead distribution facilities installed
above ground. Underground electric connections and conversions from overhead to
underground electric connection are specifically considered requests for non-standard
facilities for which AEP may require a Contribution in Aid of Construction.
AEP currently encourages, and will continue to encourage, the utilization of
underground Facilities in new subdivisions and commercial installations within the City.
AEP agrees to work with the City to install underground Facilities in all instances where it is
practical and economically and operationally feasible to do so, all in accordance with the
Tariff and AEP's Underground Distribution Policy.
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AEP acknowledges that City may adopt an ordinance requiring developers to place
residential distribution Facilities underground in new subdivisions. City will notify AEP in
writing of the adoption of any such ordinance. After such notification, AEP will not install
overhead distribution Facilities in a new subdivision without confirmation from City that City
has exempted the installation from the City's undergrounding requirement. For purposes of
this paragraph, "underground" Facilities do not include primary feeders or other lines of a
similar nature and function that comprise AEP's distribution infrastructure.
SECTION 13. Vegetation Management
AEP shall have the right, consistent with its Tariff, to cut, trim, treat and dispose of
trees and other vegetation upon and overhanging the Public Rights -of -Way of the City in the
vicinity of AEP's Facilities where such trees and other vegetation, in AEP's reasonable
opinion, constitute a hazard to AEP's personnel or Facilities, or the provision of continuous
electric service.
SECTION 14. Access to City Facilities.
Upon reasonable advance notice by the City, AEP grants to City the right to cross
AEP property to access or maintain City Facilities, provided such access shall not
unreasonably interfere with AEP's maintenance and operation of its Facilities or adversely
impact site safety and/or security, and that determination shall be at the sole discretion of
AEP.
SECTION 15. Attachment of City Facilities to AEP Poles.
AEP grants to City the right to attach lines for City purposes to poles and other
Facilities used by AEP for distribution purposes, provided City agrees that such grant shall be
in accordance with and subject to the terms and provisions of an appropriate Pole Attachment
Agreement, Wi-Fi Agreement or other such agreement covering attachments to AEP
Facilities.
SECTION 16. Extension to City Property Line.
Consistent with the Facilities Extension Schedule of AEP's Tariff, AEP will ensure
that reasonable consideration will be made to minimize the cost to the City for new
distribution line extensions installed for the City and located inside city limits as well as for
conversions from overhead to underground electric connection for existing lines within the
city limits.
SECTION 17. Compliance with Law; Police Power. AEP shall carry out
operations under this franchise in compliance with all valid and applicable federal, state, and
local laws, and AEP specifically agrees to comply with the provisions of any such City
promulgated laws or regulations, provided that any such City promulgated laws or regulations
shall not be in conflict or inconsistent with the express terms and conditions of this franchise
and shall not conflict with the laws of the State of Texas or the laws of the United States of
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America. Nothing in this franchise shall be construed to contract away any City police power
to regulate and legislate to protect and promote the public health, safety, and welfare.
SECTION 18. Venue. For proceedings and actions other than those required to be
conducted before the Public Utility Commission of Texas ("PUCT"), venue for actions
concerning any matter or controversy growing out of or incident to the duties and obligations
in this franchise shall be the State courts of competent jurisdiction of Nueces County, Texas,
unless Texas law requires a matter to be submitted to a particular regulatory body or court
outside Nueces County.
SECTION 19. Notices. All notices or other communications hereunder shall be
made in writing and may be delivered by hand delivery, United States mail, overnight courier
service or facsimile to the addresses set forth below. Notice by facsimile or hand delivery
shall be effective at the close of business on the day actually received, if received during
business hours on a business day, and otherwise shall be effective at the close of business on
the next business day. Notice by overnight United States mail or courier shall be effective on
the next business day after it was sent. Notice by United States mail (other than overnight
mail) shall effective three business days after it was sent. A party hereto may change its
address by providing notice of same in accordance herewith.
To City: City Manager, City of Corpus Christi, P.O. Box 9277, Corpus Christi, Texas
78469-9277. Fax number: 361-880-3839.
To AEP: Manager of Community Affairs, AEP Texas Central Company, 539 N.
Carancahua St, Corpus Christi, Texas, 78401 or P.O. Box 2121, Corpus Christi,
Texas, 78403. Fax number: 361-881-5497.
SECTION 20. Captions. The Captions contained in this franchise are for
convenience of reference only and are not intended to restrict, affect, enlarge or be of any
weight in the interpretation or construction of the terms and conditions of this franchise.
SECTION 21. Waiver. Failure of either party to require the performance of any
term in this franchise or the waiver by either party of any breach of this franchise does not
prevent subsequent enforcement of such term and is not deemed a waiver of any subsequent
breach. The recitation of specific remedies in this franchise does not waive the right of either
party to enforce this franchise by initiating legal proceedings to seek or obtain judicial
enforcement of the other party's obligations by means of specific performance, injunctive
relief or mandate, or any other remedy at law or in equity.
SECTION 22. Entire Agreement. This franchise contains the entire agreement of
the parties and supersedes all prior and contemporaneous agreements and understandings, oral
or otherwise, among the parties with respect to the matters contained in this franchise.
SECTION 23. Amendment. This franchise may be amended only by written
agreement of AEP and the City in accordance with the City's Charter.
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SECTION 24. No Third Party Beneficiaries. The City and AEP are entering into
this franchise solely for their own benefit and nothing herein shall be construed to confer any
right, privilege, or benefit on any person or entity other than the City and AEP. No action
may be commenced or prosecuted against any party by any third party claiming as a third
party beneficiary of this franchise agreement. The franchise agreement shall not release or
discharge any obligation or liability of any third party to either party.
SECTION 25. Requests for Confidential Information. In the event the City
receives a request for the release of information provided by AEP, that is characterized in this
franchise agreement as confidential or is characterized in writing by AEP as confidential
when it provides the information to the City, the City shall follow the procedures in the Texas
Public Information Act for requesting a Texas Attorney General's Opinion regarding
exemption of the information from disclosure and shall provide AEP with a copy of the
request for the release of the information and a copy of its request to the Texas Attorney
General asking for the opinion regarding exemption of the information from disclosure. If
requested to do so, the City will provide information available to it and other reasonable
assistance to AEP to assist AEP in establishing that the information is exempted from
disclosure.
SECTION 26. Severability. If for any reason any section, paragraph, subdivision,
clause, phrase, word or provision of this ordinance shall be held invalid or unconstitutional by
final judgment of a court of competent jurisdiction, it shall not affect any other section,
paragraph, subdivision, clause, phrase, word or provision of this ordinance, for it is the
definite intent of this City Council that every section, paragraph, subdivision, clause, phrase,
word or provision hereof be given full force and effect for its purpose; provided, however,
that this paragraph does not apply should the compensation provided to City hereunder be
held invalid by final judgment of a court of competent jurisdiction after all appeals, if any,
and City may in that event declare this franchise null and void.
SECTION 27. Publication. Publication shall be made as required by City's Charter.
SECTION 28. Acceptance. In order to accept this franchise, AEP must file its
written acceptance within 30 days after final passage by the City Council of City. If the
franchise is not accepted within 30 days, this ordinance shall be null and void.
SECTION 29. Effective Date. Subject to Section 26, and provided AEP accepts the
franchise by the filing of its written acceptance, this franchise ordinance shall take effect sixty
(60) days following its final adoption by the City Council in accordance with the City Charter.
11
Doc #198693.v12 Date: 11/512008 10:35 AM
That the foregoing ordi nce was read for the first time and passed to its second
reading on this the day of e_e* , 2008, by the following vote:
Henry Garrett
Melody Cooper
Larry Elizondo, Sr.
Mike Hummell
Bill Kelly
Ase
Priscilla G. Leal
John E. Marez
Nelda Martinez
Michael McCutchon t
That the foregoing ordinance was read for the second time and passed finally on this
the 15 day of V U& -t - . 200$ by the following vote:
Henry Garrett
Melody Cooper
Larry Elizondo, Sr.
Mike Hummell
Bill Kelly
Priscilla G. Leal a" t -
John E. Marez ' 1K,
Nelda Martinez
Michael McCutchon
PASSED AND APPROVED, this the 15 day of tfli- &- 200, <
ATTEST: U
Armando Chapa -nry Gar
City Secretary Mayor
APPROVED as to form: b-tz a, 2 o 0 i
By:-AAn
Lisa Aguilar
Assistant City Attorney
For City Attorney
028022
tt
ACCEPTANCE OF FRANCHISE
WHEREAS, the City Council of the City of Corpus Christi, Texas, by ordinance
finally passed, adopted and approved at a meeting of said City Council held on the 13th
day of January, 2009, granted to AEP Texas Central Company, formerly known as
Central Power and Light Company, ("Grantee") a franchise in accordance with applicable
law to supply electricity to the City of Corpus Christi, Texas, until midnight on December
31, 2028, and,
WHEREAS, in compliance with the terms of said Franchise Ordinance, AEP
Texas Central Company desires to file its written acceptance thereof.
NOW, THEREFORE, AEP Texas Central Company, a Texas corporation,
acting by its duly authorized officer, hereby accepts said Franchise Ordinance and files
this, its acceptance thereof, and agrees that it and its successors and assigns, are and shall
be entitled to all of the rights, privileges, authority and franchise thereby granted and are
and shall be bound by and will comply with all of the duties, liabilities, terms and
provisions thereof.
IN WITNESS WHEREOF, said Grantee has caused these presents to be
'7 tril
executed by its duly authorized officer this the / day of
Doc #380621.v1 Date: 1/12/2009 11:21 AM
AEP Texas Central Co pany
By: 12X
Pablo A. Vegas, Pre ' ent and
Chief Operating 1 ` icer
STATE OF TEXAS
COUNTY OF NUECES
I, the undersigned, City Secretary of the City of Corpus Christi, Texas, hereby
CERTIFY that the above and foregoing is a full, true and correct copy of an instrument
dated the c 3 tS day of .TGtiNA r‘,1 , 2009, accepting the franchise granted in
accordance with applicable law by an ordinance of the City Council of the City of Corpus
Christi, Texas, finally approved on the 13th day of January, 2009, which acceptance was
filed by AEP Texas Central Company with the City of Corpus Christi, Texas, on the
R' day of Su^n , 2009, and that such acceptance appears of record and
on file in my office.
IN TESTIMONY WHEREOF, witness my hand and seal of the City of Corpus
Christi, Texas, this 13N day of Ca,, -,Lia -4 - , 2009.
City Secretary of the City of
Corpus Christi, Texas
Doc 9380621.v1 Date: 1/12/2009 11:21 AM
TEXAS
AWM n/,l,n,-fil i,,11.1111,:
November 5, 2008
Mr. 'Angel R. Escobar
Interim City Manager
City of Corpus Christi
P. 0. Box 9277
Corpus Christi, Texas 78469-9277
RE: Corpus Christi Franchise renewal with AEP Texas Central Company
Dear Mr. Escobar:
As you know, the City of Corpus Christi ("City") and AEP Texas Central Company
("AEP") are currently in negotiations to reach agreement on terms and provisions for a
renewal of the electric franchise for the City ("Franchise Agreement"). In connection
with those negotiations, AEP has offered to include in the Franchise Agreetnent the
following assurance with respect to the payment of expenses for the relocation of its
facilities in response to requests by the City to meet its Americans with Disabilities Act
compliance requirements:
"Notwithstanding anything to the contrary herein contained, AEP agrees to bear
the expenses for any removal, relocation, change or alteration of its Facilities
when requested by the City Manager for the City to meet Americans with
Disabilities Act ("ADA") compliance when and if the PUCT approves a
streamlined regulation mechanism for including recovery of distribution
investments in rates and the AEP capital investments incurred to meet the City's
ADA compliance are recoverable through such streamlined distribution
regulations."
The City has now asked for further assurances of AEP's intent to pursue the
implementation of streamlined distribution regulations by statutory change initiated
during the next Texas legislative session, which begins in January 2009, or through a
regulatory proceeding before the Public Utility Regulatory Commission of Texas
("PUCT").
In response to the City's request, AEP hereby expresses its intent to pursue such
streamlined distribution regulations through either a legislative change during the next
legislative session beginning in January 2009, and/or a proceeding before the PUCT.
AEP does not guarantee or warrant in any manner whatsoever that a favorable outcome,
meaning one meeting the City's expectations, will result from AEP's actions.
:
Mr. 'Angel R. Escobar Page 2
November 5, 2008
The City agrees that it will support AEP in this endeavor by providing information
available to it and other reasonable assistance to AEP to assist AEP in its efforts to
implement streamlined distribution regulations in Texas.
If the further assurances and commitments set out above meet with the City's approval,
please so indicate by signing and returning a copy of this letter to inc.
Very truly yours,
Pablo A. Vegas
President and Chief Operating Officer, AEP Texas Central Company
cc: Ken Griffin
Richard Byrne
Rhonda Ryan
Paul Burdeaux
,vucev'f 4 p.009
ACKNOWLEDGED AND AGREED, this 1 3 day of•Noventbci —t 08.
CITY OF CORPUS CHRISTI
By:
R. Escobar, -tit City Manager
Approved as to form:
tuk, D.
Lisa O. Aguilar, Sr1 City Attorney
Doc #378504.v1 Date: 11/5/2008 10:02 AM
Writer's Direct Number: 381-881-5321
•
State of Texas
County of Nueces
PUBLISHER'S AFFIDAVIT
} CITY OF CORPUS CHRISTI
} Ad # 5885852
PO #
Before me, the undersigned, a Notary Public, this day personally came
JENNIFER HOBBS, who being first duly sworn, according to law, says that she
is LEGAL SALES REPRESENTITIVE AND EMPLOYEE OF THE PUBLISHER,
namely, the Corpus Christi Caller -Times, a daily newspaper published at
Corpus Christi in said City and State, generally circulated in Aransas, Bee,
Brooks, Duval, Jim Hogg, Jim Wells, Karnes, Kenedy, Kleberg, Live Oak,
Nueces, Refugio, San Patricio, Victoria and Webb Counties, and
;77that ��the
publication of, NOTICE OF PASSAGE OF ORDI NANCE ON FIRST wwhicchhth
annexed is a true copy, was inserted in the Corpus Christi Caller -Times on the
12/14/2008,12/14/2008.
$ 158.55
1Timets)
On this l aday of
REPRESENTIVE
I certify that the attached document
is a true and an exact copy made by publisher.
GWENN J. MEDINA
MY COMMISSION EXPIRES
August 2, 2012
Not
Public, State of Texas
CALLER -TIMES • December 14, 2008 • Sunday • 7E
NOTICE OF
PASSAGE OF ORDI-
NANCE ON FIRST
READING
"On December 9,
2008 Corpus Christi
City Council approved
first reading of an ordi-
nance granting to AEP
Texas Central Compa-
ny, its successors and
assigns, a non-exclu-
sive franchise with
term of -twenty-five
(25) years, commenc-
ing On January 1,
2003, and expiring on
December 31, 2028,
to- construct, maintain
and operate lines and
appurtenances and
appliances for con-
ducting electricity in,
over, underand
through the streets,
avenues, alleysand
public rights-of-way of
the city of Corpus
Christi, Texas, with
payments to the City
of Corpus Christi in the
amount of $0.002417
per kilowatt hour multi-
plied by the number of
kilowatt hours of elec-
tricity delivered by
AEP to Retail Custom-
ers whose consuming
facility's point of deliv-
ery,is located within
the City."
/s/ Armando Chapa
City Secretary
City of Corpus.Christi
State of Texas
County of Nueces
}
}
PUBLISHER'S AFFIDAVIT
o_igq&g
CITY OF CORPUS CHRISTI
Ad # 5889571
PO #
Before me, the undersigned, a Notary Public, this day personally came
JENNIFER HOBBS, who being first duly sworn, according to law, says that she
is LEGAL SALES REPRESENTITIVE AND EMPLOYEE OF THE PUBLISHER
namely, the Corpus Christi Caller -Times, a daily newspaper published at
Corpus Christi in said City and State, generally circulated in Aransas, Bee,
Brooks, Duval, Jim Hogg, Jim Wells, Karnes, Kenedy, Kleberg, Live Oak,
Nueces, Refugio, San Patricio, Victoria and Webb Counties, and that the
publication of, NOTICE OF PASSAGE OF ORDI NANCE NO. 0280 which the
annexed is a true copy, was inserted in the Corpus Christi Caller -Times on the
1/18/2009, 1/18/2009.
$ 158.55
1Time(s)
ES REPRESENTIVE
On thisay of
is a true and an ex
I certify that the attached document
fisher.
°WENN J, MEDINA
MY CCMMISSICN EXPIRES
August 2, 2012
ary Public, State of Texas
January 18, 2009 •
NOTICE OF
PASSAGE OF ORDI-
NANCE NO. 028022
"On January 13, 2009
Corpus Christi City
Council approved sec-
iond reading of an
ordinance granting to
AEP Texas Central
Company, Its succes-
sors and assigns, a
non-exclusive fran-
chise with term of
twenty-five (25) years,
commencing on Janu-
ary 1,.2003, and
expiring -on December
31, 2028, to construct,
maintain and operate
lines and appurte-
nances and
appliances for con-
ducting electricity in,
over, under and
through the streets,
avenues, alleys and
public rights-of-way of
the city of Corpus
Christi, Texas, with
payments to the City
of Corpus Christi in the
amount of $0.002417
per kilowatt hour multi-
plied by the number of
kilowatt hours of elec-
tricity delivered by
AEP to Retail Custom-
ers whose consuming
facility's point of deliv-
ery Is located within
. the City."
/s/ Armando Chapa
City Secretary
City of Corpus Christi