O-2294-6-04ORDINANCE NO. 2294-6-04
' AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ALLEN, COLLIN
COUNTY, TEXAS, GRANTING TO TXU ELECTRIC DELIVERY COMPANY, A
TEXAS 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 AND TRANSMISSION SYSTEM; SETTING FORTH
TERMS AND CONDITIONS TO GOVERN THE FRANCHISE; PROVIDING A
REPEALING CLAUSE, A SEVERABILITY CLAUSE, A SAVINGS CLAUSE AND
AN EFFECTIVE DATE.
WHEREAS, on July 27, 1953, the City of Allen, Texas, granted a non-exclusive franchise to Texas Power &
Light Company 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 supplying electricity to Allen residents; and,
WHEREAS, Texas Power & Light Company is now TXU Electric Delivery Company, a Texas Corporation
("Company"); and,
WHEREAS, pursuant to such grant of authority, TXU 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 August 1, 2003; and,
WHEREAS, the City Council of the City of Allen hereby finds that it is to the mutual advantage of both
the City and Company to enter into a new franchise establishing the conditions under which Company will
operate in the City; and,
WHEREAS, pursuant to Article 8 the City's Charter, the City Council hereby determines that a grant of a
franchise pursuant to this Ordinance is in the best interest 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 plum] 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.
' 1.2 "TXU" or "Company" shall mean TXU Electric Delivery Company, a Texas corporation, its
successors and permitted assigns.
1.3 "Effective Date" shall be as provided for in Section 17.
1.4 "Electric Distribution and Transmission System" shall mean Company's system of electric power
lines, with all necessary or desirable appurtenances (including underground conduits, poles, towers,
' wires, transmission lines and other structures, and telephone and communication lines for the
Company's exclusive use), for the purpose of supplying electricity to the City, the inhabitants
thereof, and persons, firms and corporations beyond the corporate limits thereof.
1.5 "Franchise" shall mean the non-exclusive permission granted to Company to use the Public Rights -
of -Way for its Electric Distribution and Transmission System.
1.6 "Franchise Fee" shall mean the total franchise fees due from Company as set forth in Section 8,
herein.
1.7 "Municipal Franchise Charge" shall mean the fee authorized by Section 33.008(b) of PURA,
currently the product of a factor of .002794 multiplied by each kilowatt hour of electricity delivered
to each retail customer within the City of Allen's municipal boundaries, or any amended fee
calculation for which the Texas Legislature or Public Utility Commission may require.
1.8 "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 Right -of -Way
is paved or unpaved.
' 1.9 "Public Utility Commission of Texas" or "PUC" shall mean the Texas Public Utility Commission
or its successor agency.
1.10 "Right -of -Way Management Ordinance" shall mean Ordinance No. 1950-6-01 codified as
Article 3, Chapter 13 of Code of Ordinances as amended.
SECTION2. Grantof Authority.
2.1 Permission. Subject to the terms and conditions herein, City hereby grants Company the non-
exclusive right, privilege and franchise to erect, construct, extend, install, maintain and operate an
Electric Distribution and Transmission System in, over, under, along and across the Public Rights -of -
Way. Company shall not use the Public Rights -of -Way for any use or purpose other than its use of
Electric Distribution and Transmission System, without obtaining, a separate, written agreement
from the City for the ancillary service. Company agrees to require other persons, firms, or
corporations that desire to attach facilities to Company's Electric Distribution and Transmission
System located within the City to represent and warrant that they have obtained all legally required
franchises, licenses, waivers, consents, easements, rights-of-way and permits needed to construct and
operate its equipment within the City. Company shall provide the City initial notification of each
person, firm or corporation that has an existing contract with Company to attach facilities on
Company's facilities within sixty (60) days after the effective date of the Franchise and provide the
City notification annually thereafter on January I of each year of each person, firm or corporation
that has an existing contract with Company to attach facilities on Company's facilities. Such
notification shall include the name of the person, firm or corporation, the type of services) intended
to be provided through the facilities, and the name and telephone number of a contact person
associated with such user.
Ordinance No. 2294-6-04, Page 2
2.2 Non -Exclusive Use. This Franchise does not provide Company 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 Company by the PUC.
Additionally, this franchise shall extend to any and all territory that is annexed by the City during the
term of this Franchise and certificated to Company by the PUC. In the event of disannexation, this
Franchise shall be reduced to the territory that continues to be in the City.
2.4 City's Rights in Public Rights -of -Way. Company 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.
Company 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 Company's
Electric Distribution and Transmission System is located in a manner inconsistent with Company's
use of such Public Rightsof-Way. If company is required by City to remove or relocate its poles,
towers, or facilities for any reason other than the widening or straightening of a street by City,
Company shall be entitled to reimbursement from City or others of the cost and expense of such
removal or relocation.
2.5 Abandonment. If City abandons any Public Right -of -Way in which Company has facilities, the
abandonment and quitclaim is without prejudice to any and all improvements, facilities, equipment or
lines of any public utility, municipal or otherwise, if any, which are presently located within any
portion of the Public Right -of -Way. Company shall have the continued right to locate, maintain,
repair, reconstruct, preserve or relocate improvements, facilities, equipment or lines in such portion
' of the Public Right -of -Way. If the party to whom the Public Right-of-Way.is abandoned requests
Company to remove or relocate its facilities, such removal or relocation shall be done within a
reasonable time at the expense of the party requesting the removal or relocation. If relocation cannot
practically be made to another Public Rightof--Way., the expense of any right-of-way acquisition
shall be considered a relocation expense to be reimbursed by the party requesting the relocation.
2.6 Compliance with Law. Company, during the tens 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.
This franchise agreement shall in no way affect or impair the rights, obligations or remedies of the
parties under the Texas Public Utility Regulatory Act, or other state or federal Law. Nothing herein
shall be deemed a waiver, release or relinquishment of either party's right to contest, appeal, or file
suit with respect to any action or decision of the other party, including ordinances adopted by the
City, that it believes is contrary to any federal, state or local Law or regulation. The City will make
an effort to provide Company with reasonable notice and opportunity to review and comment upon
any new City ordinances that impact Company's use of the Public Rights -of -Way. In constructing,
maintaining and operating the Electric Distribution and Transmission System, Company shall act in a
good and workmanlike manner, observing high standards of engineering and workmanship and using
materials of good and durable quality. Company 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).
' 2.7 Continued Obligations. This Franchise does not relieve Company 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 are required for the construction, repair or maintenance of the
Electric Distribution and Transmission System, except in no instance shall Company be required to
pay permitting fees or bonds related to these City permits, licenses or other approval processes.
Ordinance No. 2294-6-04, Page 3
2.8 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 Company.
2.9 Fees. Subject to Section 8.1, 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. Company shall obtain all
applicable local, state, and Federal licenses, permits, and authorizations required for the construction,
installation, maintenance, or operation of its Electric Distribution and Transmission System within
the Public Right -of -Way.
2.9 Use of Poles and Ducts. Nothing contained in this Franchise shall be construed to require any pole
attachments for electric light or power wires or electrical facilities or systems not provided by
Company to be attached to Company's poles or other physical plant by the City, or for the City, nor to
require any electric light or power wires or electrical facilities or systems not provided by Company
to be placed in any duct in Company's conduit by the City or for the City. If the City desires pole
attachments for electric light or power wires or electrical facilities or systems not provided by
Company, or if the City desires to place electric light or power wires or communications facilities or
systems not provided by Company in any Company duct, then a further separate, non -contingent
agreement with a reasonable fee if applicable shall be prerequisite to such attachments or such use of
any duct by the City. Agreements existing prior to this franchise 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 Company for any purpose. if Company desires attachments to any City owned
' facility, structure, or physical plant for any equipment related to delivering any service through
Company's Electric Distribution and Transmission System, Company shall notify City and City shall
authorize such attachment. If Company desires attachments to any City owned facility, structure, or
physical plant for any equipment related to delivering any service other than electricity through
Company's Electric Distribution and Transmission System, then a further separate, non -contingent
agreement shall be a prerequisite to such attachments or such use of any facility by Company.
Agreements existing prior to this franchise remain in effect according to the terms defined in such
agreements.
2.11 Company's Need to Locate Facilities. The City recognizes that Company may need to locate
facilities on other public property located in the City that is not part of the Public Right -cif -Way as
defined in Section 1.8. Company may locate such facilities in public property in accordance with the
provisions of this Ordinance provided Company obtains expressed written consent of the City.
SECTION 3. Term of Franchise. This Ordinance shall become effective on July 13, 2004 after its final
passage in accordance with the provisions for acceptance contained in Section 17. This Franchise shall
terminate on July 31, 2009, unless earlier terminated by either parry in accordance with the provisions herein.
SECTION 4. Public Riehts of Way and Construction. Company's use of Public Rights -of -Way shall be
subject to the Right -of -Way Management Ordinance and subject to the provisions of Section 2.6.
SECTION 5. Liability Insurance.
5.1 Company shall obtain, maintain, and provide insurance in the amounts, types and coverages in
accordance with the City's Right -of -Way Management Ordinance, as amended; provided, however,
that Company may instead meet the insurance requirements of the Right -of -Way Management
Ordinance No. 2294-6-04 Page 4
Ordinance either by a City approved formal plan of self-insurance maintained in accordance with
sound accounting and risk -management pmctices or by obtaining insurance as follows:
' A. Commercial general or excess liability on an occurrence or claims made form with minimum
limits of five million dollars ($5,000,000) per occurrence and ten million dollars
($10,000,000) aggregate. To the extent that coverage is maintained on a claims made form,
the minimum limits are ten million dollars ($10,000,000) per occurrence and twenty million
dollars ($20,000,000) aggregate. This coverage shall include the following:
(1) Products/completed operations to be maintained for one (1) year.
(2) Personal and advertising injury.
(3) Contractual liability
(4) Explosion, collapse, or underground (XCU) hazards.
B. Automobile liability coverage with a minimum policy limit of one million dollars
($1,000,000.00) combined single limit. This coverage shall include all owned, hired and non -
owned automobiles.
C. Workers compensation and employers liability coverage. Statutory coverage limits for
Coverage A and five hundred thousand dollars ($500,000) Coverage B employers liability is
required. Company must provide the City of Allen with a waiver of subrogation for worker's
compensation claims.
D. Company must name the City of Allen, which includes all authorities, commissions,
divisions, and departments, as well as elected and appointed officials, agents, and volunteers,
as an additional insured under the coverage required under Sections S.I.A and S.I.B. The
' certificate of insurance must state that the City of Allen is an additional insured.
E. The insurance coverage required under Sections 5.1.A and 5.LB must include coverage for
work performed by Company's contractors and subcontractors.
5.2 The Company will provide proof of insurance in accordance with this franchise within 30 days of the
effective date of the franchise. Company will not be required to furnish separate proof when
applying for permits.
SECTION 6. Indemnification And Liability For Damaees.
6.1 In consideration of the granting of this franchise, Company agrees to indemnify, defend, and hold
harmless the City, its, officers, agents and employees (the "Indemnitees") from and against all suits,
actions or claims of injury to any person or persons, or damages to any property brought or made for
or on account of any death, injuries to, or damages received or sustained by any person or persons or
for damage to or loss of property arising out of, or occasioned by Company's intentional and/or
negligent acts or omissions in connection with Company's operations; except that the indemnity
provided for in this paragraph shall not apply to any liability determined by a court of competent
jurisdiction to have resulted from the sole negligence or intentional acts or omissions of the City, its
officers, agents and employees. In the event of joint and concurrent negligence or fault of both the
Company and the City, responsibility and indemnity, if any, shall be apportioned comparatively in
accordance with the laws of the State of Texas without, however, waiving any governmental
immunity available to the City under Texas law and without waiving any of the defenses of the
' parties under Texas law. Further, in the event of joint and concurrent negligence or fault of both the
Company and the City, responsibility for all costs of defense shall be apportioned between the City
and Company based upon the comparative fault of each.
Ordinance No. 2294-6-04 Page 5
6.2 In fulfilling its obligation to defend and indemnify City, Company shall have the right to select
defense counsel, subject to City's approval, which will not be unreasonably withheld. Company
' shall retain defense counsel within seven (7) business days of City's written notice that City is
invoking its right to indemnification under this Contract. If Company fails to retain Counsel within
such time period, City shall have the right to retain defense counsel on its own behalf, and
Company shall be liable total] defense costs incurred by City, except as set out in Section 6.1.
SECTION 7. Compensation To The City,
7.1 Franchise Fee. In consideration of the grant of said right, privilege and franchise by the City and as
full payment for the right, privilege and franchise of using and occupying the Public Rights -of -Way,
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 only within the public right
of way; street taxes; street or alley rentals, bonds, certain regulatory expenses under Section 33.023
of the Public Utility Regulatory Act, Title 2, Texas Utilities Code ("PURA"), as amended, or any
similar or successor law through July 15, 2008; 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, Company shall pay to the City throughout the term of
this Franchise Agreement the following:
A. The franchise fee due from Company shall be a sum comprised of the following:
(1) the Municipal Franchise Charge. The first payment shall be made on or before
' August 1, 2004, based on the kilowatt hour of electricity delivered by Company to
each retail customer whose consuming point of delivery is located within the City's
municipal boundaries during the period from July 1, 2003, through lune 30, 2004.
The payment due on or before August 1, 2004, is for the right and privilege for the
period of August 1, 2004, through July 31, 2005. Thereafter, payment shall be made
annually on or before August 1 during the tens of this franchise. Each payment will
be based on the period from July I through June 30 immediately preceding the
August 1 payment and shall be for the right and privilege for the succeeding twelve
months. The final payment under this Franchise will be due on or before August 1,
2008, and will be for the right and privilege during August 1, 2008, through July 31,
2009.
(2) a sum equal to four percent (4%) of Gross Revenues received by Company from
services identified in its "Tariff of Retail Delivery Service," Section 6.1.2,
"Discretionary Service Charges," Items DDI through DD24, that are for the account
or benefit of an end-use retail electric consumer.
(a) The franchise fee amounts based on "Discretionary Service Charges" shall
be calculated on an annual calendar year basis, i.e., from January 1 through
December 31 of each calendar year.
(b) The franchise fee amounts that are due based on "Discretionary Service
' Charges" shall be paid at least once annually on or before April 30 each year
based on the total "Discretionary Service Charges" received during the
preceding calendar year. The final payment under this Franchise for the
period from January I, 2009, through July 31, 2009, will be due on or before
September 30, 2009.
Ordinance No. 2294-6-04, Page 6
B. Company Franchise Fee Recovery
(1) Company may file a tariff amendment(s) to provide for the recovery of the franchise
fee on Discretionary Service Charges as provided in Subsection (A)(2) above.
(2) City agrees: (i) to the extent the City acts as regulatory authority, to adopt and
approve that portion of any tariff which provides for 100% recovery of the franchise
fee on Discretionary Service Charges; (ii) in the event the City intervenes in any
regulatory proceeding before a federal or state agency in which the recovery of the
franchise fees on such Discretionary Service Charges is an issue, the City will take
an affirmative position supporting the 100% recovery of such franchise fees by
Company; and (iii) in the event of an appeal of any such regulatory proceeding in
which the City has intervened, the City will take an affirmative position in any such
appeal in support of the 100% recovery of such franchise fees by Company.
(3) City agrees that it will take no action, nor cause any other person or entity to take
any action, to prohibit the recovery of such franchise fees by Company.
C. Notwithstanding anything to the contrary in Section 7.A, hereof, if Company files general
rate cases and the City incurs cumulative expenses, otherwise reimbursable by Company
under Section 33.023 of PURA, as amended, or similar or successor law, in excess of $4
million, then in such event, Company shall reimburse all of the expenses incurred by the City
in connection with all general rate cases filed during the period beginning June 1, 1993, and
ending July 15, 2008, in excess of said $4 million. The term "general rate case" as used in
' this Ordinance means a rate case initiated by Company in which it seeks to increase its rates
charged to a substantial number of its customer classes in the City and elsewhere in its
system and in which Company's overall revenues are determined in setting such rates. The
City agrees to exercise reasonable best efforts, considering the facts and circumstances, to
keep its expenses on average to under $1,000,000 per general rate case.
7.2 With each payment of compensation required by Section 7.1(A)(1), Company shall furnish to the
City a statement, executed by an authorized officer of Company or designee, providing the total kWh
delivered by Company to each retail customer's point of delivery within the City and the amount of
payment for the period covered by the payment
7.3 With each payment of compensation required by Section 7.1(A)(2), Company shall furnish to the
City a statement, executed by an authorized officer of Company or designee, reflecting the total
amount of gross revenues received by Company for each type of services identified in its "Tariff of
Retail Delivery Service," Section 6.1.2, "Discretionary Service Charges," Items DDI through DD24
and the total amount of gross revenues received by Company from persons or entities delivering any
service other than electricity directly to retail customers through Company's Electric Distribution
System that is located in the Public Right -of -Way for the period covered by the payment.
7.4 If either party discovers that Company 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 Company within thirty (30)
calendar days of such discovery. Any overpayment to the City through error or otherwise will, at the
' option of he City, either be refunded within thirty (30) days of discovery or be offset against the next
payment due from Company. 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 outstanding amount due the City.
Ordinance No. 2294-6-04, Page 7
7.5 Interest on late 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.
7.6 No taxes, fees, or other payments by Company to the City, including, but not limited to, ad valorem
taxes, shall reduce the Franchise Fees payable to City hereunder, except as agreed to by the City in
Section 7.4.
SECTION 8. Accountine Matters.
8.1 Maintenance of Records. Company shall keep accurate books of account at its principal office in
Dallas, Texas, for the purpose of determining the amount due to the City under this Franchise.
8.2 Audit. Pursuant to Section 33.008(e) of the Texas Utilities Code, the City may conduct an audit or
other inquiry in relation to a payment made by Company less than two (2) years before the
commencement of such audit or inquiry. As a part of the audit process, the City or City's designee
may inspect Company's books of accounts relative to the City during regular business hours and on
ten (10) business days' prior written notice. 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 Company's Electric Distribution and
Transmission System that is located in the City's Public Rights -of -Way and for which Company
receives compensation.
' 8.3 Access to Records. All records deemed by City or City's designee to be reasonably necessary for
such audit performed pursuant to Section 8.2 shall be made available by Company at a location in the
City of Dallas. Company agrees to give its full cooperation in any audit and shall 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 Company.
A. If as the result of any City audit, Company 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 7.4 and 7.5.
B. If as a result of a subsequent audit, initiated within two years of an audit which resulted in
Company making a payment to the City due to an underpayment of the Franchise Fee of
more than 5%, Company 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
Uncured Event of Default and exercise the remedies provided for in Section 1 I.I.A-D.
8.4 The City agrees to maintain the confidentiality of any non-public information obtained from
Company to the extent allowed by law. City shall not be liable to Company for the release of any
information the City is required to release by law. City shall provide notice to Company of any
request for release of non-public information prior to releasing the information so as to allow
Company adequate time to pursue available remedies for protection. If the City receives a request
under the Texas Public Information Act that includes Company's proprietary information, City will
notify the Texas Attorney General of the proprietary nature of the document(s). The City also will
' provide Company with a copy of this notification, and thereafter Company is responsible for
establishing that an exception under the Act allows the City to withhold the information.
Ordinance No. 2294-6-04, Page 8
I
SECTION 9. Right of Renegotiation..
9.1 Should either Company or the City have cause to believe that a change in circumstances relating to the
terms of this franchise may exist, it may request that the other party provide it with a reasonable
amount of information to assist in determining whether a change in circumstances has taken place.
9.2 Should either party hereto determine that based on a change in circumstances, it is in the best interest
to renegotiate all or some of the provisions of this Franchise, then the other party agrees to enter into
good faith 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. A failure to agree does not show a lack of good faith. If, as a result of
renegotiation, the City and Company 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 Company.
SECTION 10. Defaults.
10.1 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 Company under this Franchise:
A. The failure of Company to pay the Franchise Fee on or before the due dates specified herein.
B. Company's breach or violation of any of the terms contained herein.
10.2 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, Company 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 11.
B. Upon the occurrence of an Event of Default by Company which cannot be cured by the
immediate payment of money to City or a third party, Company 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 cure same before City may exercise any of its
rights or remedies provided for in Section 11.
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 11.
SECTION 11. Remedies.
11.1 Remedies: Upon the occurrence of any Uncured Event of Default as described in Section 10.2, City
shall be entitled to exercise any and all of the following cumulative remedies:
' A. The commencement of an action against Company 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.
Ordinance No. 2294-6-04, Page 9
C. The commencement of proceedings to seek revocation of Company's certificate of
' convenience and necessity to serve any or all of Company's service area located within the
City of Allen.
D. The termination of this Franchise in accordance with the provisions of Section 12
11.2 Remedies Not Exclusive: The rights and remedies of City and Company 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 Company 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 12. Termination. In accordance with the provisions of Section 11.1 D, this Franchise
Agreement may be terminated upon thirty business day's prior written notice to Company. City shall notify
Company 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 Company shall have the right to appear before
the City Council in person or by counsel and raise any objections or defenses Company 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 Company 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
Company'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 13. Assignment. The rights granted by this Franchise Agreement inure to the benefit of
Company and any parent, subsidiary, or affiliate now or hereafter existing. Upon assignment to such parent,
subsidiary or affiliate, such parent, subsidiary or affiliate assumes all obligations of Company hereunder and
is bound to the same extent as Company hereunder. Company shall give the City written notice of any such
assignment to a parent, subsidiary, or affiliate. In the event Company requests assignment to someone other
than a parent, subsidiary or affiliate, such required assignment 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 assignment is given and
passage of such ordinance by City shall not be unreasonably delayed or withheld. Company shall give the
City sixty (60) days prior written notice of such request for assignment to someone other than a parent
subsidiary or affiliate.
SECTION 14. Notices.
14.1 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:
Ordinance No. 2294-6-04, Page 10
If to the City:
City of Allen
Atm: City Manager's Office
305 Century Parkway
Allen, TX 75013
With a Corry to:
City of Allen
Atm: City Attorney's Office
1800 Lincoln Plass
500 North Akard Street
Dallas, TX 75201
If to Company:
TXU Electric Delivery Company
Attn: Manager Municipal Regulatory Affairs
500 N. Aland Street, Suite 14-132
Dallas, TX 75201
14.2 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 15. Miscellaneous.
' 15.1 Amendment of Franchise Agreement. This Franchise Agreement may not be amended except
pursuant to an Ordinance adopted by the City and agreed to by Company.
15.2 Governing Law. The laws of the State of Texas shall govern the interpretation validity,
performance and enforcement of this Franchise Agreement.
15.3 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.
15.4 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.
15.5 Successors and Assigns. This Franchise is binding upon the successors and permitted assigns of the
parties.
15.6 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.
Ordinance No. 2294-6-04, Page 11
I
15.7 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.
15.8 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.
15.9 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.
15.10 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.
SECTION 17. This Ordinance shall become effective on July 13, 2004, after its final passage. Prior to the
first and third reading by the City Council, Company shall provide written notification to the City indicating
acceptance of this Ordinance contingent upon no amendments or changes to the document as submitted.
Prior to August 15, 2004, Company shall file with the City Secretary its final written acceptance of this
Ordinance.
DULY PASSED AND APPROVED ON THE FIRST READING BY THE CITY COUNCIL OF THE
CITY OF ALLEN, COLLIN COUNTY, TEXAS, ON THIS THE —?0'- DAY OF
2004.
DULY PASSED AND APPROVED ON THE SECOND READING BY THE CITY COUNCIL OF
THE CITY OF ALLEN, COLLIN COUNTY, TEXAS, ON THIS THEW AY OF ,
2004.
DULY PASSED AND APPROVED ON THE THIRD READING BY THE CITY CO CIL OF THE
CITY OF ALLEN, COLLIN COUNTY, TEXAS, ON THIS THE /` DAY OF
2004. ��/ (((��V
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4.7V
Stephen Verrell, MAYOR
APPROVED AS TO FORM: ATTEST:
a =�A, 1\YAK4 r
Peter G. Smith, CITY ArtORNEY Shelley B. George, MMC, CITY SE TARY
Ordinance No. 2294-6-04 Page 12