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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 Doc#198693.v12 Date: 11/5"2008 10:35 AM 1 098022 Execution Version 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 2 Doc#198693.v12 Date: 11/5/2008 10:35 AM Execution Version 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 3 Doc #198693.v12 Date: 11/5/2008 10:35 AM Execution Version 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. 4 Doc #198693.v12 Date: 11/5/2008 10:35 AM Execution Version (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 5 Doc 8198693.v12 Date: 11/5/2008 10:35 AM Execution Version 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. 6 Doc #198693.v12 Date: 11/5/2008 10:35 AM Execution Version (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. 7 Doc #198693.v12 Date: 11/5/2008 10:35 AM Execution Version (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. 8 Doc #198693.v12 Date: 11/5/2008 10:35 AM Execution Version 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 9 Doc #198693.v12 Date: 11/52008 10:35 AM Execution Version 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. 10 Doc #198693.v12 Date: 11/5/2008 10:35 AM Execution Version 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