O-2296-6-04ORDINANCE NO. 22%-6-04
' AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ALLEN, COLLIN
COUNTY, TEXAS, GRANTING TO GRAYSON-COLLIN ELECTRIC
COOPERATIVE, INC., A TEXAS ELECTRIC COOPERATIVE CORPORATION,
ITS SUCCESSORS AND ASSIGNS, A NON-EXCLUSIVE FRANCHISE TO USE
PUBLIC RIGHTS-OF-WAY OF THE CITY OF ALLEN, TEXAS FOR THE
PURPOSES OF CONSTRUCTING AND OPERATING AN ELECTRIC
DISTRIBUTION SYSTEM; SETTING FORTH TERMS AND CONDITIONS TO
GOVERN THE FRANCHISE; PROVIDING A REPEALING CLAUSE, A SAVINGS
CLAUSE AND AN EFFECTIVE DATE.
WHEREAS, on November 26, 1996, by Ordinance No. 1458-10-96, the City of Allen, Texas, granted a non-
exclusive franchise to Grayson -Collin Electric Cooperative, Inc. and its successors and assigns to construct,
erect, build, equip, own, maintain and operate in, along, under, over and across the streets, avenues, alleys,
bridges, viaducts and public grounds of the City of Allen, Texas for the purpose of transmitting, supplying,
distributing and selling electricity; and,
WHEREAS, pursuant to Ordinance No. 1458-10-96, Grayson -Collin Electric Cooperative, a Texas
Corporation ("the Cooperative"), is now and has been engaged in the electric utility business in the State of
Texas and the City of Allen and, in furtherance thereof, has erected and maintained portions of its physical
plant in the City; and,
' WHEREAS, the original franchise ordinance granted by the Allen City Council expires on July 27, 2003;
and,
WHEREAS, the Allen City Council granted an ordinance extending the franchise through July 31, 2004; and,
WHEREAS, the City Council of the City of Allen hereby finds that it is to the mutual advantage of both
the City and the Cooperative to enter into a new franchise establishing the conditions under which the
Cooperative will operate in the City; and,
WHEREAS, pursuant to Article 8 of the City's Charter, the City Council hereby determines that a. grant of a
franchise pursuant to this Ordinance is in the best interests and will inure to the benefit of the City and its
citizens.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ALLEN,
COLLIN COUNTY, TEXAS, THAT:
SECTION 1. Definitions. For the purpose of this ordinance the following terms, phrases, words,
abbreviations and their derivations shall have the meaning given herein. When not inconsistent with the
context, words used in the present tense include the future tense, words in the plural number include the
singular number, and words in the singular number include the plural number.
1.1 "City" shall mean the City of Allen, Texas, and includes the territory that currently is or may in the
future be included within the boundaries of the City.
I1.2 "Cooperative" shall mean Gmyson-Collin Electric Cooperative, a Texas Electric Cooperative
Corporation, its successors and permitted assigns.
1.3 "Effective Date" shall be as provided for in Section 17.
1.4 "Electric Distribution System" shall mean the Cooperative's system of cables, wires, lines, poles,
towers, anchors, guy wires, insulators, transformers, substations, conduits, ducts, and any associated
equipment, or plant, or other facilities located within the City designed and constructed for the
purpose of transmitting or distributing electricity to or from customers or locations within the City, as
the same now exists and as may, from time to time, be placed, removed, constructed, reconstructed,
extended and maintained.
1.5 "Franchise" shall mean the non-exclusive permission granted to Cooperative to use the Public
Rights -of -Way for its Electric Distribution System.
1.6 "Franchise Fee" shall mean the total franchise fees due from Cooperative as set forth in Section 8,
herein.
1.7 "Gross Revenues" shall mean the gross operating revenue for all services provided by Cooperative
to its customers within the corporate boundaries of the City as accrued on the Cooperative's books
Pursuant to the accounting principles established by the Rural Utilities Service of the U. S.
Department of Agriculture in 7 CFR 1767 and specifically 1767.26, Accounts 440-456, as amended.
The term "Gross Revenues" shall not include (1) local, state, or federal taxes collected by
Cooperative that have been billed to its customers and separately stated on customers' bills, (ii)
revenue uncollectible from customers (i.e., bad debts) with billing addresses in the City that was
previously included in Gross Revenues, or, (iii) contributions in aid of construction (C64C). "Gross
Revenues" shall include franchise fees collected from the Cooperative's customers located within the
City.
' 1.8 "Laws" shall mean any and all applicable statutes, constitutions, ordinances, resolutions, regulations,
judicial decisions, rules, tariffs, administrative Orders, certificates, orders, Or other requirements Of the
City or other governmental agency having jurisdiction of the parties to this Franchise Agreement, in
effect during the term of the Franchise Agreement.
1.9 "Public Right -Of -Way" means the area of land within the City that is acquired by, dedicated to, or
claimed by the City in fee simple, by easement, or by prescriptive right and that is expressly or
impliedly accepted or used in fact or by operation of law as a public roadway, highway, street,
sidewalk, alley, or utility access easement The term includes the area on, below, and above the
surface of the Public Right -of -Way. The term applies regardless of whether the Public Rightof-Way,
is paved or unpaved. The term shall not include county, state, or federal rights-of-way or any property
owned by any person or agency other than the City, except as provided by applicable Laws or
pursuant to an agreement between the City and any such person or agency.
1.10 "Public Utility Commission Of Texas" or "PUC" shall mean the Texas Public Utility Commission
or its successor agency.
1.11 "Right -of -Way, Management Ordinance" shall mean Ordinance No. 1950-6-01 codified as
Article 3, Chapter 13 of Code of Ordinances as amended.
SECTION 2. Grant of Authori
2.1 Permission/Franchise Agreement. Subject to the terms and conditions herein, City hereby grants
Cooperative non-exclusive permission to erect, construct, install and maintain an Electric Distribution
System in, over, under, along and across the Public Rights -of -Way. Cooperative shall not use the
Public Rights -of -Way for any use or purpose other than its use of Electric Distribution System,
without obtaining, separate, written authorization from the City for the ancillary service. Within five
business (5) days of City's request, Cooperative shall provide the City a list of each person, firm or
corporation that has an existing contract with Cooperative to attach facilities on Cooperative's
Ordinance No. 2296-6-04, Page 2
facilities within the City. Such notification shall include the name and address of the person, firm or
corporation as reflected in the Cooperative's contract with such person, firm or corporation.
2.2 Non -Exclusive Use. This Franchise does not provide Cooperative with exclusive use of the Public
Rights -of -Way and the City reserves the right to grant at any time, like privileges, rights and
franchises, as it deems appropriate to any other person, corporation or business entity.
2.3 Area of the City Affected. This Franchise shall extend to and include any and all territory that is
within the corporate limits of the City that have been certificated to Cooperative by the PUC.
Additionally, this franchise shall extend to any and all territory that is annexed by the City during the
tern of this Franchise and certificated to Cooperative by the PUC. In the event of disannexation, this
Franchise shall be reduced to the territory that continues to be in the City. The City shall promptly
furnish Cooperative with an Ordinance including maps of the affected franchise area in the event of
an annexation or disannexation. Within thirty (30) days from the date such Ordinance including maps
are furnished, Cooperative shall identify all customers located within such annexed or disannexed
territory and adjust its accounting system accordingly. For the purposes of calculating Gross
Revenues, customers, if any, included within an annexed or disannexed area shall be deemed to
commence sixty (60) days from the date the City furnishes the Ordinances including maps to
Cooperative.
2.4 City's Rights in Public Rights -of -Way. Cooperative acknowledges that by this Franchise it obtains
no rights to, or further use, of the Public Rights -of -Way other than those expressly granted herein.
Cooperative acknowledges and accepts at its own risk, provided that the City has the legal authority
for the use, or uses in question, that the City may use future Public Rights -of -Way in which
Cooperative's Electric Distribution System is located in a manner inconsistent with Cooperative's use
Ordinance No. 22966-04, Page 3
of such Public Rights -of -Way and, in that event, Cooperative shall not be entitled to compensation or
'
reimbursement from City.
2.5
Compliance with Law. Cooperative, during the term of this Franchise, shall be subject to and
comply with all applicable local, state and Federal laws, including the rules and regulations of any
and all agencies thereof, whether presently in force or whether enacted or adopted at any time in the
future in constructing and maintaining its Electric Distribution System. In constructing, maintaining
and operating the Electric Distribution System, Cooperative shall act in a good and workmanlike
manner, observing high standards of engineering and workmanship and using materials of good and
durable quality. Cooperative shall comply in all respects with applicable codes and industry
standards, including but not limited to the National Electrical Safety Code (latest edition) and the
National Electric Code (latest edition). Nothing in this Franchise shall be construed to waive either
party's right to challenge any statute, ordinance or regulation.
2.6
Continued Obligations. This Franchise does not relieve Cooperative of the obligation to comply
with applicable municipal codes and ordinances and to obtain permits, licenses and other approvals
from City or other units of government that am required for the construction, repair or maintenance of
the Electric Distribution System, except in no instance shall Cooperative be required to pay
permitting fees or bonds related to these City permits, licenses or other approval processes.
2.7
Right of Condemnation Reserved. Nothing in this Franchise Agreement shall limit any right the
City may have to acquire by eminent domain any property of the Cooperative.
2.8
Fees. Subject to Section 8.6 of this Franchise Agreement, nothing in this Franchise shall be construed
to limit the authority of the City to impose a tax, fee, or other assessment of any kind on any person.
Subject to Section 8.6 of this Franchise Agreement, Cooperative shall pay all fees necessary to obtain
all applicable local, state, and Federal licenses, permits, and authorizations required for the
construction, installation, maintenance, or operation of its Electric Distribution System.
Ordinance No. 22966-04, Page 3
2.9 Use of Poles and Ducts. Nothing contained in this Franchise shall be construed to require or permit
any pole attachments for electric light or power wires or electrical facilities or systems not provided
' by Cooperative to be attached to Cooperative's poles or other physical plant by the City, or for the
City, nor to require or permit any electric light or power wires or electrical facilities or systems not
provided by Cooperative to be placed in any duct in Cooperative's conduit by the City or for the City.
Nothing contained in this Franchise Agreement shall be construed as a City requirement that
Grayson -Collin shall share its duct space with City or with any other entity. Grayson -Collin shall
maintain sole business discretion and authority regarding sharing of duct space. Nothing herein shall
prohibit the Cooperative from requiring reasonable, non-discriminatory, terms and from charging just
compensation pursuant to a joint use agreement; however, any joint use agreement with any third
party shall not be enforceable by City. If the City desires pole attachments for electric light or power
wires or electrical facilities or systems not provided by Cooperative, or if the City desires to place
electric light or power wires or communications facilities or systems not provided by Cooperative in
any Cooperative duct, then a further separate non -contingent agreement shall be prerequisite to such
attachments or such use of any duct by the City. Agreements existing prim to this Franchise
Agreement remain in effect according to the terms defined in such agreements.
2.10 Use of City Owned Facilities, Structures, and Physical Plant. Nothing contained in this Franchise
shall be construed to require or permit any attachments to City owned facilities, structures or physical
plant by Cooperative for any purpose. If Cooperative desires attachments to any City owned facility,
structure, or physical plant for any equipment related to operating the Electric Distribution System or
delivering any service other than electricity through Cooperative's Electric Distribution System, then
a further separate non -contingent, agreement shall be a prerequisite to such attachments or such use of
any facility by Cooperative. Agreements existing prior to this Franchise Agreement remain in effect
according to the terns defined in such agreements.
' SECTION 3. Terms of Franchise. This Ordinance shall become effective on July 13, 2004, after its final
passage, provided that Cooperative has filed with the City Secretary its written acceptance of this Ordinance
prior to the Effective Date, and shall terminate on July 31, 2009, unless earlier terminated by either party in
accordance with the provisions herein. Upon mutual agreement of the parties, the term of this Franchise
Agreement may be renewed for two additional terms of five (5) years each on the same terms and conditions
as set forth herein or as agreed to by the parties.
SECTION 4. Public Right -of - Way and Construction. Cooperative's use of Public Rights -of -Way shall
be subject to the Right -of -Way Management Ordinance.
SECTION 5. Compliance with Public Utility Commission Rules and Regulations. Cooperative must
comply with all customer service rules and regulations set by the Public Utility Commission of Texas that are
applicable to electric cooperatives.
SECTION 6. Liability Insurance. Cooperative shall obtain, maintain, and provide insurance in the
amounts, types and coverages in accordance with the City's Right -of -Way Management Ordinance.
SECTION 7. Indemnification and Liability for Damages.
7.1 Cooperative shall release, defend, indemnify and hold harmless the City, its officers, agents and
employees from and against all damages, injuries (including death), claims, property damages
(including loss of use), losses, demands, suits, judgments and costs, including attorney's fees and
expenses, in any way arising out of, related to, or resulting from Cooperative's use of the Public
Right -of -Way or caused by the negligent act or omission of Cooperative, its officers, agents,
employees, subcontractors, licensees, invitees or any other third parties for whom Cooperative is
legally responsible, except to the extent that such loss, injury, demand, suit, judgment, cost, fee,
claim, damage, liability or expense is finally determined by a court of competent jurisdiction to have
Ordinance No. 2296-6-04, Page 4
resulted from an indemnified party's negligence, willful misconduct or gross negligence. Pending
judicial determination, Cooperative shall continue to defend and indemnify City.
7.2 City shall have the right to approve the defense counsel remind by Cooperative for the City in
fulfilling its obligation hereunder, unless such right is expressly waived by City in writing. City
reserves the right to provide a portion or all of its own defense; however, City is under no obligation
to do so. Any such action by City is not to be construed as a waiver of Cooperative's obligation to
defend and/or indemnify the City. Cooperative shall retain approved defense counsel for the City
within seven (7) business days after receipt of written notice that the City is invoking its right to
indemnification under this Franchise. In the event Cooperative fails to timely retain Counsel the City
shall have the right to retain counsel at Cooperative's costs.
SECTION 8. Compensation to the City.
8.1 Franchise Fee. In consideration of the grant of this Franchise by the City, and as full payment for the
right, privilege and franchise of using and occupying the said Public Rights -of --Way for Cooperative's
Electric Distribution System and in lieu of any and all occupation taxes; assessments; municipal
charges; fees; easement taxes; franchise taxes; license; permit and inspection fees or charges
associated with activities within the public right-of-way; street taxes; street or alley rentals; bonds;
and all other taxes, charges, levies, fees and rentals of whatsoever kind and character which the City
may impose or hereafter be authorized or empowered to levy and collect, excepting only the usual
general or special ad valorem taxes which the City is authorized to levy and impose upon real and
personal property, sales and use taxes, and special assessments for public improvements, Cooperative
shall pay to the City throughout the term of this Franchise the following:
A. The franchise fee due from Cooperative shall be a sum equal to four percent (4%) of
Cooperative's Gross Revenues, which shall be payable quarterly with payment due on or
before the 30'" day of the following month following the end of the calendar quarter.
Cooperative shall pay franchise fees on a quarterly basis as provided below:
Ouarierly Period Franchise Payment Due Date
First (January l -March 3l) April 30
Second (April 1 -June 30) July 31
Third (July 1 -September 30) October 31
Fourth (October 1 -December 31) January 31
8.2 Cooperative shall furnish to the City with each payment of compensation required by this Section a
quarterly statement, executed by an authorized officer of Cooperative or designee, the amount of
Gross Revenues received for the period covered by the payment and the computation of the payment
amount.
8.3 If either party discovers that Cooperative has failed to pay the entire or correct amount of
compensation due, the correct amount shall be determined and the City shall be paid by Cooperative
within thirty (30) days of such discovery. Any overpayment to the City through error or otherwise
shall, at the option of the City, be refunded or offset against future payments due from Cooperative.
Acceptance by the City of any payment due under this Franchise shall not be deemed to be a waiver
by the City of any breach of this Franchise occurring prior thereto, nor shall the acceptance by the
City of any such payments preclude the City from later establishing that a different amount is due or
' from collecting any balance due to the City.
8.4 Interest on late or delinquent payments shall be calculated in accordance with the interest rate for
customer deposits established by the PUC in accordance with Texas Utilities Code Section 183.003 as
amended for the time period involved.
Ordinance No. 2296-6-04, Page 5
8.5 No taxes, fees, or other payments by Cooperative to the City, including, but not limited to, ad valorem
taxes, shall reduce the Franchise Fees payable to City hereunder. Nothing in this Franchise shall be
construed to prohibit the City from levying the usual general or special ad valorem taxes which the
City is authorized to levy and impose upon real and personal property, general sales and use tax,
assessments for public improvements, and sums to which the City may be entitled under the Texas
Utility Code (the Texas Public Utility Regulatory Act), and no reduction of the Franchise Fee will
occur pursuant to the Texas Public Utility Regulatory Act.
8.6 Cooperative is hereby authorized to surcharge to customers within the City all or any portion of the
Gross Revenues assessment. All bills for services rendered within the City shall be adjusted so as to
recover the Gross Revenues assessment specified herein, less any percentage that is recovered by
Cooperative through base rates or other charges.
SECTION 9. Accounting Matters
9.1 Maintenance of Records. Cooperative shall keep accurate books of account at its principal office,
which is currently located in Corinth, Texas, for the purpose of determining the amount due to the
City under this Franchise.
9.2 Audit. The City, or City's designee, may inspect Cooperative's books of accounts relative to the City
at any time during regular business hours and on ten (10) business days' prior written notice and may
audit the books from time to time but not more often than annually. All records reasonably necessary
for such audit shall he made available by Cooperative at Cooperative's principal offices. Cooperative
agrees to give its full cooperation in any audit and shall provide complete responses to inquiries
within fifteen (15) business days of a written request The City or City's designee may also request
the identity of the service provider and the type of service delivered for any service in addition to
electricity delivered directly to retail customers through Cooperative's Electric Distribution System
that are located in the City's Public Right -of -Way and for which Cooperative receives compensation.
9.3 Access to Records. All records reasonably deemed by City or City's designee to be reasonably
necessary for such audit shall be made available by Cooperative in a format reasonably deemed
appropriate by the City and at the Cooperative's principal offices, or Cooperative shall pay the City's
expenses in traveling to any other location necessary to conduct the audit. Cooperative agrees to give
its full cooperation in any audit and shall attempt in good faith to provide complete responses to
inquiries within twenty (20) calendar days of a written request, unless a different schedule is agreed to
by the City and Cooperative.
A. If as the result of any City audit, Cooperative is refunded/credited for an overpayment, or
pays the City for an underpayment, of the Franchise Fee, such refund/credit or payment shall
be made pursuant to the terms established in Sections 8.3 and 8.4.
B. If as a result of a subsequent audit, which resulted in Cooperative making a payment to the
City due to an underpayment of the Franchise Fee of more than 5%, Cooperative makes
another payment to the City due to an underpayment of the Franchise Fee of more than 5%,
the City may immediately treat this underpayment as an Event of Default and, if uncured as
provided in Section 11.2, exercise the remedies provided for in Section 12.I.A-D.
9.4 Allocation for Bundled and/or Discounted Services. If Cooperative bundles, ties, or combines
' electric services (which are subject to the franchise fee under this Franchise) with non -electric
services (which are not subject to the franchise fee under this Franchise) and assesses a customer only
one fee, the total revenue there from shall be allocated to the electric services to the full extent that
would have been charged by Cooperative if the customer had received only electric services. The
rebuttable presumption shall be that the discount offered is not attributable to a discount in electric
Ordinance No. 2296-6-04, Page 6
services but is in fact attributable to a discount in the non -electric services provided by Cooperative.
In the event that Cooperative receives from a customer an amount less than the mandatory tariff rate
amount that it would be entitled to receive for electric services due to bundling, then Section 9.4(b)
shall apply.
For example, assume that Cooperative offers a price of $100 to customers for bundling electric
services, cable services and local telephone services. Based on mandatory tariff rates, the
Cooperative should have received $80 for electric services, $30 for cable service and $10 for local
telephone service for a total of $120. The rebuttable presumption shall be that the $20 discount
offered is not attributable to a discount in electric services but is in fact attributable to a discount in
the cable and/or telephone services provided by Cooperative. Therefore, Cooperative's franchise fees
would be based on the full $80 that is attributable to the electric services unless Cooperative proves to
City pursuant to the provisions of Section 9.4(b) below that electric services were actually discounted
in addition to the discounted non -electric services.
A. Notwithstanding any interpretation to the contrary, this Franchise does not authorize
Cooperative to vary or alter any payments or amounts of compensation to the City that may
be dictated by another franchise, ordinance, agreement or by applicable law and are related to
the use of the Public Rights -of -Way in the provision of non -electric services in the City.
B. If Cooperative offers its customers any kind of discount for receipt of both electric services
(which are subject to the Franchise Fee under this Franchise) and non -electric services (which
are not subject to the Franchise Fee under this Franchise), the discount shall be applied
proportionately to electric services and non -electric services upon notification to the City of
such discount methodology. Such notification shall include the amount of the discount being
' applied to each service and documentation demonstrating the promotion and billing of such
discount. This Section shall also apply to any and all price increases related to bundled
services.
For example, assume that a customer's monthly charge for electric services alone would be
$40; for local telephone service alone, $30; and for cable service alone, $30, for a total of
$100. If Cooperative offers a single rate to the customer for taking all three services from
Cooperative that, in effect, amounts to a 20% discount from the rates that would apply to the.
services if purchased individually, the aggregate discount in this example is $20. For
computation of the Franchise Fee, the $20 discount would be applied pro rata so that Gross
Revenue hereunder would be deemed to be $32 (a 20% discount from the $40 Fee for electric
services). The result would be the same if Cooperative offers a specific dollar discount for
any services provided, such as, for example, a $20 discount for local telephone services
offered on the condition that the subscriber also take electric services at the standard $40 rate.
9.5 The City agrees to maintain the confidentiality of any non-public information obtained from
Coopemtive to the extent allowed by law. City shall not be liable to Cooperative for the release of
any information that the City is required to release by law. City shall provide notice to Cooperative
of any request for release of non-public information prior to releasing the information so as to allow
Cooperative adequate time to pursue available remedies for protection. If the City receives a request
under the Texas Public Information Act that includes Cooperative's proprietary information, City will
notify the Texas Attorney General of the proprietary nature of the document(s). The City also will
provide Cooperative with a copy of this notification, and thereafter Cooperative is responsible for
establishing that an exception under the Act allows the City to withhold the information.
9.6 The omission by the City to exercise its rights to an audit shall not constitute waiver of such right.
SECTION 10. Rieh[ of Reneeotiation. Should either party hereto determine that it is in its best interest to
renegotiate all or some of the provisions of this Franchise, then the other party agrees to enter into good faith
Ordinance No. 2296-6-04, Page 7
negotiations. Said negotiations shall involve reasonable, diligent, and timely discussions about the pertinent
issues and a resolute attempt to settle those issues. The obligation to engage in such negotiations does not
obligate either party to agree to an amendment of the Franchise as a result of such negotiations. If, as a result
of renegotiation, the City and Cooperative agree to a change in a provision of this Ordinance, the change shall
become effective upon passage of an Ordinance by the City in accordance with the City Charter and
acceptance of the amendment by Cooperative. Cooperative agrees to provide the City any and all requested
information related to any changes in conditions, practices, or services provided by Cooperative through the
use of the Public Rights -of -Way.
SECTION 11. Defaults.
11.1 Events of Default. The occurrence, at any time during the term of the Franchise, of any one or more
of the following events, shall constitute an Event of Default by Cooperative under this Franchise:
A. The failure of Cooperative to pay the Franchise Fee on or before the due dates specified
herein.
B. Cooperative's breach or violation of any of the material terms contained herein.
11.2 Uncured Events of Default.
A. Upon the occurrence of an Event of Default which can be cured by the immediate payment of
money to the City or a third party, Cooperative shall have thirty (30) calendar days after
written notice from City of an occurrence of such Event of Default to cure same before City
may exercise any of its rights or remedies provided in Section 12.
' B. Upon the occurrence of an Event of Default by Cooperative which cannot be cured by the
immediate payment of money to City or a third party, Cooperative shall have ninety (90)
calendar days (or such additional time as agreed to by the City) after written notice from City
of an occurrence of such Event of Default to care same before City may exercise any of its
rights or remedies provided for in Section 12.
C. If any Event of Default is not cured within the time period allowed for curing the Event of
Default as provided for herein, such Event of Default shall, without additional notice, become
an Uncured Event of Default, which shall entitle City to exercise the remedies provided for in
Section 12.
SECTION 12. Remedies.
12.1 Remedies. Upon the occurrence of any Uncured Event of Default as described in Section 11.2, City
shall be entitled to exercise any and all of the following cumulative remedies:
A. The commencement of an action against Cooperative for monetary damages.
B. The commencement of an action in equity seeking injunctive relief or the specific
performance of any of the provisions that, as a matter of equity, are specifically enforceable.
C. The commencement of proceedings to seek revocation of Cooperative's certificate of
convenience and necessity to serve any or all of Cooperative's service area located within the
' City of Allen.
D. The termination of this Franchise in accordance with the provisions of Section 13.
Ordinance No. 2296-6-04, Page 8
12.2 Remedies Not Exclusive. The rights and remedies of City and Cooperative set forth in this
Franchise shall be in addition to, and not in limitation of, any other rights and remedies provided by
law or in equity. City and Cooperative understand and intend that such remedies shall be cumulative
to the maximum extent permitted by law and the exercise by City of any one or more of such
remedies shall not preclude the exercise by City, at the same or different times, of any other such
remedies for the same Uncured Event of Default. However, notwithstanding this Section or any other
provision of this Franchise, City shall not recover both liquidated damages and actual damages for the
same Uncured Event of Default, either under this Section or under any other provision of this
Franchise.
SECTION 13. Termination. In accordance with the provisions of Section 12.1 D, this Franchise
Agreement may be terminated upon thirty business days prior written notice to Cooperative. City shall notify
Cooperative in writing at least fifteen (15) business days in advance of the City Council meeting at which the
question of forfeiture or termination shall be considered, and Cooperative shall have the right to appear before
the City Council in person or by counsel and raise any objections or defenses Cooperative may have that are
relevant to the proposed forfeiture or termination. The final decision of the City Council may be appealed to
any court or regulatory authority having jurisdiction. Upon timely appeal by Cooperative of the City
Council's decision terminating the franchise, the effective date of such termination shall be either when such
appeal is withdrawn or a court order upholding the termination becomes final and unappealable. Until the
termination becomes effective the provisions of this franchise shall remain in effect for all purposes. The City
recognizes Cooperative's right and obligation to provide service in accordance with the Certificate of
Convenience and Necessity authorized by the Public Utility Commission in accordance with the Texas
Utilities Code.
SECTION 14. Assignment. The rights granted by this Franchise Agreement inure to the benefit of
Cooperative and any parent, subsidiary, affiliate or successor entity now or hereafter existing. The rights shall
not be assignable without the express written consent of the City Council of the City, which consent shall not
be unreasonably withheld, except Cooperative may assign its rights under this Franchise Agreement to a
parent, subsidiary, affiliate or successor entity without such consent, so long as (i) such parent, subsidiary,
affiliate or successor assumes all obligations of Cooperative hereunder, and (ii) is bound to the same extent as
Cooperative hereunder. Any required consent is to be evidenced by an ordinance of the City Council of the
City that fully recites the terms and conditions, if any, upon which consent is given. Cooperative shall give
the City sixty (60) days prior written notice of any such assignment to a parent, subsidiary, affiliate or
successor entity. Any attempted assignment in violation of this Section shall be void and shall be grounds for
termination by City.
SECTION 15. Notices.
15.1 All notices required by this Franchise Agreement shall be in writing and delivered personally or
transmitted (a) through the United States mail, by registered or certified mail, postage prepaid; (b) by
means of prepaid overnight delivery service; or (c) by facsimile or email transmission, if a hard copy
of the same is followed by delivery through the U.S. mail or by overnight delivery service as just
described, addressed as follows:
If to the City:
City of Allen
Atm: City Manager's Office
305 Century Parkway
Allen, TX 75013
Ordinance No. 2296-6-04, Page 9
With a Cony to:
City of Allen
' Atm: City Attorney's Office
1800 Lincoln Plaza
500 North Akard Street
Dallas, TX 75201
If to the Cooperative:
Grayson -Collin Electric
Atm: Chief Executive Officer
P. O. Box 548
Van Alwyne, TX 75495-0548
15.2 Date of Notices; Changing Notice Address. Notices shall be deemed given: (a) upon receipt in the
case of personal delivery; (b) three (3) days after deposit in the mail; or (c) the next day in the case of
facsimile or overnight delivery. From time to time, either party may designate another address for
this purpose by written notice to the other party delivered in the manner set forth above.
SECTION 16. Miscellaneous.
16.1 Amendment of Franchise Agreement. This Franchise Agreement may not be amended except
pursuant to an Ordinance adopted by the City and agreed to by Cooperative.
16.2 Governing law. The laws of the State of Texas shall govern the interpretation validity, performance
and enforcement of this Franchise Agreement. The parties agree that this Agreement is performable
in Collin County, Texas and that exclusive venue shall lie in Collin County, Texas.
16.3 Force Majeure. In the event that the performance by either party of any of its obligations or
undertakings hereunder shall be interrupted or delayed by an act of God or the result of war, riot, civil
commotion, sovereign conduct, or the act or conduct of any person or persons not party or privy
hereto, then such party shall be excused from performance for a period of time as is reasonably
necessary after such occurrence to remedy the effects thereof, and each party shall bear the cost of
any expense it may incur due to the occurrence.
16.4 Attorneys' Fees. Should any dispute arising out of this Franchise lead to litigation, the prevailing
party shall be entitled to recover its costs of suit, including reasonable attorneys' fees.
16.5 Exhibits. All exhibits referred to in this Franchise and any addenda, attachments, and schedules
which may from time to time be referred to in any duly executed amendment to this Franchise are by
such reference incorporated in this Franchise and shall be deemed a part of this Franchise.
16.6 Successors and Assigns. This Franchise is binding upon the successors and permitted assigns of the
parties.
16.7 Consent Criteria. In any case where the approval or consent of one party hereto is required,
requested or otherwise to be given under this Franchise, such party shall not unreasonably delay or
withhold consent.
16.8 Waiver of Breach. The waiver by either party of any breach or violation of any provision of this
' Franchise shall not be deemed to be a waiver or a continuing waiver of any subsequent breach or
violation of the same or any other provision of this Franchise.
Ordinance No. 2296-6-04, Page 10
16.9 All ordinances of the City of Allen, Collin County, Texas, in conflict with the provisions of this
ordinance be, and the same are hereby, repealed; provided, however that all other provisions of said
' ordinances not in conflict with the provisions of this ordinance shall remain in full force and effect.
16.10 Should any word, sentence, paragraph, subdivision, clause, phrase or section of this ordinance, as
amended hereby, be adjudged or held to be void or unconstitutional, the same shall not affect the
validity of the remaining portions of said ordinance, which shall remain in full force and effect.
16.11 An offense committed before the effective date of this ordinance is governed by prior law and the
Code of Ordinances of the City of Allen, as previously amended, in effect when the offense was
committed and the former law is continued in effect for this purpose.
16.12 Any person, firm or corporation violating any of the provisions or terms of this ordinance or of the
Code of Ordinances, as amended hereby, shall be subject to the same penalty as provided for in the
Code of Ordinances of the City of Allen, as previously amended, and upon conviction shall be
punished by a fine not to exceed the sum of Two Thousand Dollars ($2,000) for each offense.
16.13 Limitations. Should either party desire to pursue any claim or cause of action against the other
relating to this franchise, notwithstanding any provisions of any law, the parry desiring to assert such
claim or cause of action must do so in a form with appropriate jurisdiction within four years of the
date that such claim or cause of action first arose or said claim or cause of action shall be forever
barred.
SECTION 17. This Ordinance shall become effective on July 13, 2004, after its final passage, provided that
Cooperative has filed with the City Secretary its written acceptance of this Ordinance prior to the Effective
Date. Prior to the first and third reading by the City Council, Cooperative shall provide written notification to
the City indicating acceptance of this Ordinance contingent upon no amendments or changes to the document
as submitted.
DULY PASSED AND APPROVED ON THE FIRST READINqLBY THE CITY COUNCIL OF THE
CITY OF ALLEN, TEXAS, ON THIS THE -ZK DAY OF 2004.
DULY PASSED AND APPROVED ON THE SECOND READIN BCi Y THE CITY COUNCIL OF
THE CITY OF ALLEN, TEXAS, ON THIS THE DAY OF 2004.
DULY PASSED AND APPROVED ON THE THIRD READ!DLG BY THE CITY COUNCIL OF THE
CITY OF ALLEN, TEXAS, ON THIS THE/Lt_ DAY OF 2004.
APPROVED:
StephenYOR
APPROVED AS TO FORM: ATTEST:
' Peter G. Smith, CICI A� Shelley B. Geo TRMC, CITY SECRETARY
Ordinance No. 2296-6-04, Page 11