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HomeMy WebLinkAbout2021-4302 - Ordinance - 10/14/20211 ORDINANCE NO. __________. AN ORDINANCE GRANTING TO THE CITY OF BRYAN, TEXAS, A TEXAS MUNICIPAL CORPORATION (“BRYAN”) CERTIFICATED TO PROVIDE RETAIL ELECTRIC UTILITY SERVICE BY THE PUBLIC UTILITY COMMISSION OF TEXAS (“PUC”), ITS SUCCESSORS AND ASSIGNS, AN ELECTRIC POWER FRANCHISE THAT EXTENDS TO SPECIFIED AREAS WITHIN THE CORPORATE LIMITS OF THE CITY OF COLLEGE STATION (“COLLEGE STATION”), TO USE THE PRESENT AND FUTURE STREETS, AVENUES, ALLEYS, ROADS, HIGHWAYS, SIDEWALKS, PUBLIC UTILITY EASEMENTS AND OTHER PUBLIC RIGHTS OF WAY (COLLECTIVELY “ROW”) IN THE SPECIFIED AREAS OF COLLEGE STATION FOR CONSTRUCTION AND OPERATION OF ITS ELECTRIC SYSTEM FOR A PERIOD OF TEN (10) YEARS; REGULATING THE USE OF THE RIGHTS OF WAY BY BRYAN AND THE REPAIR AND RESTORATION OF STREETS DISTURBED BY CONSTRUCTION; PROVIDING FOR THE TEMPORARY REMOVAL, RAISING AND LOWERING OF CABLES AND OTHER EQUIPMENT AND MATERIAL; PROVIDING FOR COMPENSATION TO BE PAID TO COLLEGE STATION; PROVIDING THAT THIS FRANCHISE SHALL NOT BE EXCLUSIVE; PROVIDING A SEVERABILITY CLAUSE; RESERVING ALL POWERS OF REGULATION; MAKING MISCELLANEOUS PROVISIONS RELATIVE TO THIS GRANT OF FRANCHISE; PROVIDING FOR ACCEPTANCE BY BRYAN; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Bryan is now and has been engaged in the electric utility business in the State of Texas and in furtherance thereof, has erected and maintained certain items of its physical plant in College Station pursuant to such rights as may have been granted it by and under the laws of the State of Texas, and subject to the reasonable exercise of the police powers granted by and under said laws to College Station; and WHEREAS, it is hereby found and determined by the City Council of College Station that it is in the best interest of College Station that a franchise be awarded to Bryan stating the agreement between Bryan and College Station under which Bryan may use the ROW as defined above to maintain and construct its physical plant in College Station; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF COLLEGE STATION, 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. The word “shall” is always mandatory, and not merely directory. A. “Anniversary Date” shall mean the date on which this Franchise is accepted by Bryan. B. “Bryan” shall mean the City of Bryan, Texas, a home-rule municipal corporation that owns and operates a municipal electric utility system, d/b/a “Bryan Texas Utilities”. C. “College Station” shall mean the City of College Station, Texas, a home-rule municipal corporation and includes the territory that currently is or may in the future be included within the boundaries of the City of College Station DocuSign Envelope ID: 97529F74-CF21-4E92-BF30-81903AE4E11B 2021-4302 2 D. “Consumer” shall mean any Person receiving and using electric utility service from Bryan for that Person’s own appliances or equipment within College Station whether or not the Electricity is billed directly to that Person or to another party. (As an example, in the case of a rental unit where the cost of utilities is part of the rent, the landlord is a Customer and the tenant is a Consumer.) E. “Core Areas” shall mean all areas within the Corporate Limits of College Station other than areas defined as Non-Core Areas. Core Areas are defined by the boundaries as set forth in Attachment “A” to this document. F. “Corporate Limits” shall mean the corporate limits of the City of College Station, Texas, as they may exist from time to time. References to areas “within College Station” or “in College Station” mean and refer to locations within the corporate limits of College Station. G. “Council” means the governing body of College Station. H. “Customer” means any Person billed by Bryan for Electricity or service delivered within the Corporate Limits of College Station, whether such Electricity or service is used by that Person or by others. I. “Director” means the director of the Department of the College Station city government having jurisdiction and responsibility for engineering and establishing standards for construction on and repair of city streets. J. “Electricity” shall mean energy (kWh) and power (kW) provided by Bryan. K. “Electric System” shall mean Bryan’s system of cables, wires, lines, poles, towers, anchors, guy wires, insulators, transformers, conduits, ducts, and any associated equipment, or plant, or other facilities designed and constructed for distributing Electricity at 60,000 volts or less, or associated communications facilities or systems used solely in conjunction with Bryan’s electric facilities as described herein as the same now exists and may from time to time be placed, removed, constructed, reconstructed, extended and maintained. Nothing in this Ordinance shall authorize Bryan to provide retail electric utility service to electric consuming facilities located within the area that College Station is solely authorized to provide retail electric utility service by the Public Utility Commission of Texas. L. “Force Majeure” shall mean, without limitation by the following enumeration, acts of God and the public enemy, the elements, fire, accidents, breakdowns, shut-down for purposes of necessary repairs, relocation or construction of facilities, breakage or accidents to machinery or distribution lines, the necessity of making repairs or alterations to machinery or to transmission or distribution lines, inability to obtain materials, supplies, permits, or labor to perform or comply with any obligation or condition of this Franchise, and any other events, occurrences or conditions that the person claiming an event of Force Majeure could not, by the exercise of due diligence, have avoided or prevented, and which by the exercise of due diligence has been unable to overcome or cure. M. “Franchise” and “Ordinance” shall mean this ordinance, and all rights and obligations established herein, as it may be amended from time to time. N. “Gross Receipts” shall mean the annual receipts collected by Bryan from its Customers or Consumers for the retail sale of Electricity and the provision of any other electric utility DocuSign Envelope ID: 97529F74-CF21-4E92-BF30-81903AE4E11B 3 services or charges to Consumers and Customers, exclusive of the sale of merchandise and/or any sales tax within the Corporate Limits of College Station. Gross Receipts shall include but not be limited to franchise fees collected from Bryan’s Customers or Consumers located within College Station. Gross Receipts shall not include revenues from wholesale sales of Electricity or wholesale transmission revenues; revenues uncollectable from Customers (i.e. bad debts) with billing addresses in the City that was previously included in Gross Receipts; all monies received from the lease or sale of real or personal property; any amounts billed or collected from Customers for refundable deposits; any amounts received by Bryan for contributions in aid of construction (CIAC); reimbursements for damage to or relocation of any part of the Electric System; pole attachment revenue; and State or Federal grants or reimbursements. O. “Non-Core Areas” shall mean all territory within College Station lying west and south of FM 2818 and extending east from FM 2818 at State Highway 6 to Carter Creek as shown in Attachment A. P. “Person” shall include, unless otherwise required in context, a natural person, a legal entity or other group or organization. Q. “Pole Use Agreement” means the standard agreement approved by Bryan and College Station pursuant to the Agreement for Common Use of Distribution Poles and Transmission Structures between Bryan and College Station and used to control the manner in which any apparatus, line or cable is attached by one party to electric poles or similar equipment owned by the other party. R. “Public Utility Commission of Texas” or “PUC” shall mean that agency as presently constituted by the laws of the State of Texas or any successor agency. S. “Public Utility Easement” shall mean those easements held, owned or controlled by College Station, the terms and conditions of which or limitations upon which are not inconsistent with the construction, maintenance and operation of electric utility facilities. T. “Rights of Way” or “ROW” shall mean the present and future Streets, Sidewalks, and Public Utility Easements that permit electric utility service uses or other public right of way of College Station. U. “Sidewalk” shall mean a paved area within the street right-of-way or sidewalk easement specifically designed for pedestrians and/or bicyclists. V. “Streets” shall mean a street, alley, avenue, road, highway or other publicly dedicated or maintained right-of-way, a portion of which is open to use by the public for vehicular travel. Section 2. GRANT OF AUTHORITY. Subject to the terms, conditions and provisions of this Ordinance, the right, privilege and franchise is hereby extended and granted to Bryan, to use ROW of College Station as necessary for all uses associated with the provision or termination of electric utility service including the construction, reconstruction, upgrade, maintenance, repair, replacement, relocation and operation of its Electric System including associated communications facilities and systems, in accordance with the terms of this Franchise, within College Station’s Non-Core Area Corporate Limits as the same are now and as the same may be from time DocuSign Envelope ID: 97529F74-CF21-4E92-BF30-81903AE4E11B 4 to time extended. The rights, privilege and franchise granted hereunder are non-exclusive and are granted subject to the existing charter and ordinances of College Station, and are subject to such lawful changes by charter provision or ordinance as may be necessary to the public health and safety by College Station in the exercise of its lawful police powers. The Parties recognize that Bryan has for many years owned, operated and maintained an Electric System in College Station. Nothing in this Franchise is intended to limit or shall limit Bryan’s rights to use easements now or hereafter held, owned or controlled by Bryan for such purposes. Bryan shall have the right to lease, license or otherwise grant to a party other than Bryan the use of its facilities within College Station’s Rights-of-Way, provided that prior to the date of the initial attachment of the facilities of a new lessee, licensee, or user to Bryan’s facilities, Bryan shall notify College Station of the name of the lessee, licensee, or user, the type of service(s) intended to be provided through the facilities, and the name and telephone number of a contact person associated with such lessee, licensee, or user. This authority to lease facilities within the Rights-of-Way shall not affect any such lessee, licensee, or user’s obligation, if any, to also obtain permits and other required regulatory approval from College Station and to pay franchise fees or any other applicable fees to College Station. Not included in the Franchise granted herein are any facilities (including any equipment attached in any way to Bryan’s facilities, whether owned by Bryan or not) that provide data delivery, cable service, telephone service, and/or any other service or product unrelated to Bryan’s transmittal and delivery of electricity. Except for Bryan Electric System facilities as defined and authorized by this Franchise, any other facilities, including but not limited to, data delivery, cable service, telephone service, and/or any other service or product, shall be subject to applicable franchise agreements that cover such facilities or activities in College Station ROW. COLLEGE STATION MAKES NO REPRESENTATION OR WARRANTY OF ANY NATURE THAT ITS EXISTING OR FUTURE RIGHTS OF WAY WERE, ARE, OR WILL BE SUFFICIENT TO PERMIT THE ATTACHMENT, INSTALLATION, MAINTENANCE, REPLACEMENT, RELOCATION, REPAIR, MODIFICATION OR REMOVAL OF THE ELECTRIC SYSTEM. Section 3. TERM OF FRANCHISE. Upon the filing with College Station by Bryan of the acceptance required herein, this Franchise shall be in full force and effect for a term and period of ten (10) years, beginning on the Anniversary Date, unless terminated as provided herein. This Franchise may be amended only upon mutual agreement by the Parties, which amendment will not be effective until reduced to writing and executed by both Parties. Section 4. CONSTRUCTION AND MAINTENANCE OF ELECTRIC SYSTEM. Bryan may construct and re-construct its Electric System facilities that are necessary facilities for the distribution of Electricity within College Station’s Non-Core Area ROW. All poles to be placed shall be so set that they will not unreasonably interfere with the flow of water in any gutter or drain, and so located that the same will interfere as little as practicable with the ordinary travel on the Streets or Sidewalks, and so as not to unreasonably obstruct visibility at public street intersections. Bryan shall determine the appropriate route for all lines. The location of all poles, stubs, guys, anchors, conduits and cables placed and constructed and to be placed and constructed by Bryan in the construction and maintenance of its Electric System in College Station, and the location of all conduits laid and to be laid by DocuSign Envelope ID: 97529F74-CF21-4E92-BF30-81903AE4E11B 5 Bryan within the limits of College Station pursuant to this Franchise shall be subject to lawful, reasonable and proper regulation of general applicability within the City. Bryan will give reasonable consideration to requests by College Station to relocate underground any of its aerial facilities or place new facilities underground. Where available and where feasible to do so along the route chosen by Bryan, Bryan shall use College Station electrical poles for any expansions, additions or extensions of lines in the Electric System in College Station, and College Station will endeavor to do the same. In such instances the Pole Use Agreement will determine how such expansion, additions, or extensions will be accomplished. Nothing contained in this Ordinance shall be construed to require any pole attachments for electric light or power wires or electrical facilities or systems not provided by Bryan, or any non-electric wires, facilities or systems, to be attached to Bryan’s poles or other physical plant. Nothing herein shall prohibit Bryan from requiring reasonable, non-discriminatory terms and from charging just compensation pursuant to a Pole Use Agreement. College Station shall look solely to Bryan for Bryan to enforce all applicable rules, regulations, laws, ordinances, and codes with regards to any Bryan Pole Use Agreement, third-party licensees on Bryan poles or Bryan infrastructure located in College Station ROW. College Station shall not sell, lease or otherwise make available any rights granted by Bryan to College Station to use Bryan’s facilities to any third party. Such rights are provided solely for the non- commercial, governmental use by College Station. Section 5. CONDITIONS OF OCCUPANCY. A. Use. All structures, poles, and facilities erected or maintained by Bryan on ROW within College Station shall be located so as not to cause unreasonable interference with the use of the Streets and with the rights of the owners or occupiers of property which adjoins any of such Streets. B. Construction and Restoration. Except as provided in this Franchise, Bryan shall comply with Chapter 34 of the Code of Ordinances of College Station, Article IV, Utility Right- of-Way Use. This Franchise gives Bryan the right to continued use and occupancy of ROW for the purpose of constructing, reconstructing, repairing, maintaining, using and operating facilities for the distribution of Electricity together with all necessary or desirable appurtenances. College Station hereby waives prior non-compliance by Bryan, if any, with Chapter 34 of the Code of Ordinances of College Station, Article IV. Pursuant to Chapter 34 of the Code of Ordinances of College Station Article IV Section 34-168 insurance and bonding requirements are met by Section 7 of this Franchise. Additionally, with regard to Chapter 34 Article IV Section 34.139, College Station agrees that state law requires College Station to pay for relocation of electric utility facilities made at the request of the City to the extent such facilities are located in easements or other property held, owned or controlled by the electric utility. Pursuant to Chapter 34 of the Code of Ordinances of College Station Article IV Section 34-139, the Parties agree that in lieu of the prescribed ninety (90) days to relocate facilities, a different schedule will apply as follows: College Station and Bryan will mutually agree to a project timetable for relocation of Bryan electric facilities and Bryan agrees to relocate all identified electric facilities according to the project timetable; provided, however, that, in the event the Parties are unable to mutually agree to a project timetable, those identified facilities will be deemed abandoned no earlier than two (2) years from the date notice is received by Bryan and College Station may remove the facilities without liability and charge the cost of the removal to Bryan. Notice will be given no earlier than at the time of completion of the final design of the project requiring relocation. Bryan will submit all plans of record for electric facilities in College DocuSign Envelope ID: 97529F74-CF21-4E92-BF30-81903AE4E11B 6 Station right of way to the College Station Electric Utilities Department for filing. Bryan agrees that all such electric facilities in College Station right of way will comply with standards of the National Electric Safety Code (NESC), latest edition for new construction, at the time the facilities are constructed. College Station finds that this franchise adequately replaces the requirement for registration and permitting as shown in the Code of Ordinances of College Station Chapter 34 Article IV. C. Pursuant to the College Station’s police power authority, this right-of-way ordinance may be superseded by a new or amended ordinance, which shall be of general application to all users of College Station rights-of-way. College Station also agrees that College Station will not tamper with, disable or remove any of Bryan’s facilities without prior permission from Bryan except as provided above. College Station reserves the right to request that idle facilities that are not in use and useful be removed unless Bryan can establish the need for such facilities. D. Relocation of Facilities in Private Easements. Bryan may make claims, including claims for actual and reasonable costs or damages, in the event College Station requires or requests Bryan to move, relocate, change, alter, or modify any of its property constructed in easements or on other property held, owned or controlled by Bryan. College Station shall include a description of the facilities, location, desired place of relocation and request an estimate of the costs for relocation. Bryan shall provide to College Station an estimate of the costs of relocation within forty-five (45) days. If College Station requests Bryan to relocate its facilities, then, to the extent Bryan’s facilities were constructed in easements or on property held, owned or controlled by Bryan, College Station shall pay within thirty (30) days of invoice Bryan’s estimate of costs. Notwithstanding the foregoing, College Station will not be liable for consequential damages. E. Relocation of Facilities for the Benefit of Third Parties. If College Station shall require Bryan to adapt or conform its facilities, or in any way or manner to alter, relocate, or change its property to enable any other Person, except College Station, to use, or to use with greater convenience, any ROW Bryan shall not be bound to make such changes until such other Person shall reimburse or make satisfactory arrangements for reimbursement to Bryan for any loss and expense caused by or arising out of such change. College Station shall not be liable for such reimbursement. F. Temporary Raising or Lowering of Wire for Building Moving. Upon written request of any Person holding a building moving permit issued by College Station, Bryan shall raise, or lower its wires and cables temporarily to permit the moving of houses, buildings or other bulky structures. The reasonable expense of such temporary raising or lowering shall be paid by the benefited person, and Bryan may require such payment in advance, Bryan being without obligation to raise, or lower its wires and cables until such payment shall has been made. Bryan shall be given not less than seventy-two (72) hours advance written notice to arrange for such temporary wire and cable adjustments. G. Tree Trimming. College Station may, from time to time, pass ordinances regulating the trimming or removal of trees on or along College Station property, however, reasonable tree trimming and vegetation control shall be allowed. H. Placement of Fixtures. Bryan shall not place poles, towers or similar fixtures where the same will unduly interfere with any existing gas, electric, or telephone fixture, water hydrant or main, drainage facility or sanitary sewer, and all such poles, towers and similar DocuSign Envelope ID: 97529F74-CF21-4E92-BF30-81903AE4E11B 7 facilities shall be placed in such manner as not to unreasonably interfere with the usual travel or use of the streets. I. Street Lights. Bryan shall provide electric service to standard or decorative street lights within Bryan’s PUC certificated area in College Station. Unmetered street lighting will be installed, operated and maintained by Bryan. Bryan will establish a monthly cost for each light which includes installation of a standard design, operation and maintenance costs. College Station will approve requests for the installation of street lighting. Bryan shall have the authority to approve or deny developer requests to install new types of decorative lights that are not included on Bryan’s pre-approved streetlight list. J. Traffic Signals. Bryan shall provide space on existing facilities and those to be constructed in Public Utility Easements for College Station to attach traffic signals. If the facilities require an upgrade to accommodate College Station’s request for traffic signals, College Station may elect to either construct its own traffic signal facilities or to reimburse Bryan for the difference in cost to make the necessary upgrades to Bryan’s facilities. College Station shall pay for electricity necessary to operate the traffic signals in accordance with Bryan’s tariff for such services. Section 6. UNDERGROUND INSTALLATION. If the undergrounding of utilities is required by Article 8.3.S. of College Station’s Unified Development Ordinance, as amended, College Station may, or the property developer shall, bear the cost of the furnishing and installing all conduit, pulling vaults, trenching, backfill, boring, special backfill as required, or other civic work to accommodate the required design of BTU facilities. BTU will furnish and install the electrical conductor and devices. Contribution in Aid of Construction (CIAC) for these extensions shall be paid as provided in Bryan’s BTU Electric Line Extension Policy, as amended. Section 7. LIABILITY INSURANCE. A. Minimum Coverage. Within thirty (30) days after the effective date of this Franchise, Bryan shall file with the Director and shall maintain throughout the term of this Franchise a policy of comprehensive general insurance, including an endorsement for contractual liability, issued by an insurance company duly authorized to do business in the State of Texas insuring College Station and Bryan with respect to the installation, maintenance, and operation of Bryan’s Electric System. The amounts designated herein are minimum requirements and do not establish the limits of the Bryan’s liability: (1) Comprehensive General Liability: One Million Dollars ($1,000,000.00) combined single limit per occurrence for bodily injury, personal injury and property damage. (2) Automobile Liability: One Million Dollars ($1,000,000.00) combined signal limit per accident for bodily injury and property damage. (3) Worker’s Compensation and Employers Liability: Workers’ Compensation limits statutory for the State of Texas and Employers Liability limits of One Million Dollars ($1,000,000.00) per accident. (4) Excess and Umbrella Liability Insurance in a form following the underlying coverages in an amount of One Million Dollars ($1,000,000.00) each occurrence and one Million Dollars ($1,000,000.00) aggregate. DocuSign Envelope ID: 97529F74-CF21-4E92-BF30-81903AE4E11B 8 B. Notice of Cancellation or Reduction. Such liability insurance shall contain the provision that written notice of expiration, cancellation, reduction or material change in coverage of the policy shall be delivered to the Director and to Bryan at least thirty (30) days in advance of the effective date thereof. C. Term. Such liability insurance shall be kept in full force and effect by Bryan during the existence of this Franchise. Section 8. GOVERNING LAW; LIMITATIONS; COMPLIANCE. A. Governing Law. This Ordinance shall be construed in accordance with College Station’s Charter and Code of Ordinances in effect on the Effective Date of this Ordinance to the extent that such Charter and Code of Ordinances are not in conflict with or in violation of the Constitution and laws of the United States or the State of Texas. B. Limitations: This Ordinance shall be governed by and construed in accordance with the laws of the State of Texas. Should either party desire to pursue any claim or cause of action against the other relating to this Ordinance, notwithstanding any provisions of any law, the party desiring to assert such claim or cause of action must do so in a form with appropriate jurisdiction within four (4) years of the date that such claim or cause of action first arose or said claim or cause of action shall be forever barred. C. Compliance. Notwithstanding any other provision of this Franchise to the contrary, College Station and Bryan shall at all times comply with all laws, rules and regulations of the state and federal government and any administrative agencies thereof, with respect to the subject matter of this Ordinance. 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 College Station that Bryan believes are contrary to applicable laws. Section 9. PAYMENT TO COLLEGE STATION. A. In consideration for the rights and privileges herein granted, the administration of this Franchise by College Station, the temporary interference with the use of public rights of way and other costs and obligations undertaken by College Station herein, Bryan hereby agrees to pay to College Station during the term of this Franchise a sum of money equal to five percent (5%) of annual Gross Receipts as herein defined. Franchise fee payments shall be paid quarterly on or before each May 1, August 1, November 1, and February 1 for the most recently ended calendar quarter. Bryan shall file with College Station’s City Manager within thirty (30) days after the expiration of each quarter of each calendar year, or portion thereof during which this Franchise is in effect, a statement showing in reasonable detail the Gross Receipts collected during the preceding quarter of the calendar year. Such statement shall be accompanied by Bryan’s payment to College Station of five percent (5%) of the Gross Receipts for such quarter. An interest charge shall be assessed on a franchise fee payment not paid on the due date at the rate of ten percent (10%) per year for each day that the franchise fee payment is late, and check for the interest due shall accompany the late franchise payment. B. If Bryan elects or is required to provide customer choice pursuant to the terms of the Public Utility Regulatory Act, the fee due under this Franchise shall be based on the following: DocuSign Envelope ID: 97529F74-CF21-4E92-BF30-81903AE4E11B 9 (1) each kilowatt hour of Electricity delivered by Bryan to each retail customer whose consuming facility’s point of delivery is located within College Station’s Corporate Limits. The charge imposed shall be equal to the total electric franchise fee revenue due College Station under this Franchise for the calendar year preceding Bryan’s decision to provide customer choice divided by the total kilowatt hours delivered during that calendar year by Bryan to retail customers whose consuming facilities’ points of delivery were located within College Station’s Corporate Limits. The fee due to College Station from Bryan as the provider of distribution service shall be equal to the charge per kilowatt hour determined for the calendar year preceding Bryan’s decision to provide customer choice multiplied times the number of kilowatt hours delivered within College Station’s Corporate Limits; and (2) a sum equal to five percent (5%) of gross revenues received by Bryan from Discretionary Service Charges that are for the benefit of an end-use retail electric consumer within Bryan’s certificated area located within College Station’s Corporate Limits. Discretionary Service Charges shall include but not be limited to: connection charges, disconnection charges, reconnection charges, meter testing charges, out-of-cycle meter read charges, non- standard meter installation charges, service call charges, outdoor lighting charges, tampering charges, denial of access charges, distributed renewal generation metering charges, and construction services. Bryan shall make payment to College Station accompanied by a statement filed with College Station’s City Manager within thirty (30) days after the expiration of each quarter of each calendar year, or portion thereof during which this Franchise is in effect. The statement shall show in reasonable detail the basis for the payment. An interest charge shall be assessed on a franchise fee payment not paid on the due date at the rate of ten percent (10%) per year for each day that the franchise fee payment is late, and check for the interest due shall accompany the late franchise payment. C. The consideration set forth in this section shall be paid and received in lieu of any other license, charge, fee, street or alley rental, or other character of charge for use and occupancy of the Streets, Sidewalks, Public Utility Easements, and other public rights of way of College Station and in lieu of any pole tax, inspection fee tax or other tax, any lawful permit, inspection or other fee whether charged to Bryan or any of its contractors; and any imposition other than the usual general ad valorem taxes, special assessments to abutting landowners or sales taxes now or hereafter lawfully levied. Section 10. RECORDS AND REPORTS. A. Book of Account. Bryan shall keep complete and accurate books of accounts and records of its business and operations from which Gross Receipts may be determined. To the extent practicable, copies of relevant portions of such books of accounts and records shall be made available at Bryan’s office nearest to College Station upon reasonable request. B. Access by College Station. The Director or his duly designated officers, agents, or representatives, shall have access to all books of accounts and records of Bryan relating to this Franchise as reasonably needed to determine the accuracy of any and all reports relating to Bryan’s receipts to College Station. Any confidential or proprietary matters disclosed to College Station shall be held in confidence and disclosed only as needed to enforce College Station’s rights under this Ordinance. Section 11. AREA OF COLLEGE STATION AFFECTED. A. This Franchise shall extend to and include any and all territory that is within Non-Core Areas of College Station. This Franchise shall not apply to Core Areas of College Station. DocuSign Envelope ID: 97529F74-CF21-4E92-BF30-81903AE4E11B 10 Bryan may operate, maintain, repair, replace, reconstruct or upgrade Bryan’s existing Electric Facilities in the ROW of Core Areas. B. This Franchise is not intended to and does not enlarge the scope or geographical extent of certification to provide retail service beyond the area certificated to Bryan in the absence of this Franchise. C. Additionally, this Franchise shall extend to any and all territory which is annexed by College Station during the term of this Franchise. In the event of disannexation, this Franchise shall be reduced to the territory that continues to be in College Station. D. College Station shall promptly furnish Bryan with maps of the affected area in the event of an annexation or disannexation. Within sixty (60) days from the date such maps are furnished, Bryan shall identify all Customers located within such annexed or disannexed territory and adjust its accounting system accordingly. For the purposes of calculating Gross Receipts, Customers, if any, included within an annexed area shall be deemed to commence sixty (60) days from the date College Station furnishes the maps to Bryan. Section 12. NON-EXCLUSIVE FRANCHISE. This Franchise is not exclusive and nothing herein contained shall be construed so to prevent College Station from granting other like or similar rights, privileges and franchises to any other Person. Section 13. DEFAULT; REMEDIES. In addition to all rights and powers of College Station by virtue of this Franchise or otherwise, College Station reserves the rights to terminate and cancel this Franchise in accordance with the following provisions: A. Violation of Provisions. This Franchise may be terminated by College Station in the event Bryan shall by act or omission materially violate any term, condition or provision of this Franchise and shall fail or refuse to effect compliance within thirty (30) days following written demand by College Station to do so. Upon the occurrence of an event of default by Bryan which cannot be cured within such thirty (30) day period, Bryan shall have sixty (60) calendar days (or such additional time as may be agreed to by College Station) after receipt of written notice from College Station of an occurrence of such event of default to cure same before College Station may exercise any of its rights or remedies pursuant to this Section 13. B. Method of Termination and Cancellation. Any such termination and cancellation of this Franchise shall be by ordinance adopted by College Station; provided, however, before any such ordinance is adopted, Bryan shall be given at least thirty (30) days’ advance written notice, which notice shall set forth the causes and reasons for the proposed termination and cancellation, shall advise Bryan that it will be provided an opportunity to be heard by City Council regarding such proposed action before any such action is taken, and shall set forth the time, date, and place of the hearing. In no event shall such hearing be held less than thirty (30) days following delivery of such notice to Bryan. The final decision of the City Council may be appealed to any court or regulatory authority having jurisdiction. Upon timely appeal by Bryan of the City Council’s decision terminating the Franchise granted herein, 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. If DocuSign Envelope ID: 97529F74-CF21-4E92-BF30-81903AE4E11B 11 no appeal is filed, the effective date of such termination shall be the thirtieth (30th) day following the date of the final termination decision of the City Council. Until the termination becomes effective the provisions of the Franchise granted herein shall remain in effect for all purposes. C. Force Majeure. Other than its failure, refusal or inability to pay its debts and obligations, including, specifically, the payments to College Station required by this Franchise, Bryan shall not be declared in default or be subject to a sanction under any provision of this Franchise in those cases in which performance of such provision is prevented by reasons beyond its reasonable control. Section 14. RATE REGULATION; RESERVE OF REGULATORY POWERS; RESERVE OF LEGAL RIGHTS. A. Rate Regulation. College Station shall have only such regulatory power, authority, and jurisdiction respecting Bryan’s rates, if any, as may be provided by law, if any. B. Regulatory Powers. College Station by the granting of this Franchise does not render or to any extent lose, waive, impair, or lessen the lawful powers and rights, now or hereafter vested in College Station under the Constitution and statutes of the State of Texas and of the United States of America and under the Charter of College Station, to regulate the use of the Streets by College Station. C. Legal Rights. Bryan by accepting this Franchise does not surrender or to any extent lose, waive, impair or lessen the lawful powers and rights now or hereafter vested in Bryan under the Constitution and statutes of the State of Texas and of the United States of America. Section 15. GOVERNMENTAL FUNCTION. All of the lawful regulations and activities required by this Franchise are hereby declared to be governmental and for the health, safety, and welfare of the general public. Section 16. ASSIGNMENT. Bryan shall not assign its rights or obligations under this Franchise, nor any part of such rights or obligations, without the prior written consent of College Station, which consent shall not be unreasonably withheld, conditioned, or delayed. As a condition of an assignment the proposed assignee shall execute a written acknowledgment that it has read, understood, and intends to abide by this Franchise, and that the assignee assumes all obligations and liabilities imposed by this Franchise on Bryan. Section 17. PUBLICATION COST. In compliance with the provisions of Article III, Section 35 of College Station Charter, Bryan shall pay the cost of those publications of this Franchise required by such Charter provisions. DocuSign Envelope ID: 97529F74-CF21-4E92-BF30-81903AE4E11B 12 Section 18. ACCEPTANCE. Bryan shall, within thirty (30) days from the date this Franchise takes effect, file with the Secretary of College Station a written statement signed in its name and behalf in substantially the following form: To the Honorable Mayor and City Council: The City of Bryan, Texas, for itself, its successors and assigns, hereby accepts the attached Franchise and agrees to be bound by all of its terms and provisions. City of Bryan, Texas By:__________________________________________ Date: _____________________ Section 19. SEVERABILITY. If any provisions, section, subsection, clause, or phrase of this Ordinance is for any reason held to be unconstitutional, void, or invalid (or for any reason unenforceable), to the extent practicable, the validity of the remaining portions of this Franchise shall not be affected thereby, it being the intent of College Station in adopting this Ordinance that so long as practicable no portion hereof or provision hereof shall become inoperative or fail by reason of any unconstitutionality or invalidity of any other portion, provision, or regulation, and to this end, all provisions of this Ordinance are declared to be severable. If a modification of this Ordinance by severance of valid provisions from invalid provisions results in an ordinance that is not practicable, in the opinion of either party, then the parties agree to meet promptly and discuss any necessary amendments or modifications to this Ordinance. If the parties are unable to agree on necessary amendments or modifications within a reasonable period of time, then this Ordinance may be terminated by either party by providing thirty (30) days’ written notice to the other. Section 20. NOTICES. Any notices required to be sent to the parties under this Franchise shall be sent to the following: CITY OF COLLEGE STATION BRYAN TEXAS UTILITIES City Manager General Manager P.O. Box 9960 P.O. Box 1000 College Station, Texas 77842 Bryan, Texas 77805 Any such notice shall be deemed to have been served and received if: (i) delivered in person to the address set forth above; (ii) deposited in an official depository under the regular care and custody of the United States Postal Service and sent by certified mail, return receipt requested, and addressed to such party at the address hereinafter specified; or (iii) delivered to such party by courier receipted delivery. Either party may designate another address for notice, but until written notice of such change is deemed served and received by the other party as provided above, the last address of such party designated for notice shall remain such party’s address for notice. DocuSign Envelope ID: 97529F74-CF21-4E92-BF30-81903AE4E11B 13 Section 21. PASSAGE AND EFFECTIVE DATE. This Franchise shall take effect and be in force from and after sixty (60) days’ following its final passage and approval. PASSED first reading this _________________ day of ____________________ , A.D. 2021. PASSED second reading this _______________ day of ____________________ , A.D. 2021. APPROVED this _________________ day of ___________________ , A.D. 2021. CITY OF BRYAN CITY OF COLLEGE STATION By: _______________________________ By: ___________________________________ Andrew Nelson, Mayor Karl Mooney, Mayor Date: ______________________________ Date: __________________________________ ATTEST: ATTEST: __________________________________ _______________________________________ Mary Lynne Stratta, City Secretary Tanya D. Smith, City Secretary Date: ______________________________ Date: __________________________________ APPROVED: ______________________________________ Bryan Woods, City Manager Date: _________________________________ APPROVED AS TO FORM: APPROVED AS TO FORM: __________________________________ _______________________________________ Thomas A. Leeper, Interim City Attorney Carla A. Robinson, City Attorney Date: _____________________________ Date: __________________________________ DocuSign Envelope ID: 97529F74-CF21-4E92-BF30-81903AE4E11B 9/16/2021 9/16/2021 9/20/2021 October September October 10/15/2021 14th 23rd 14th 10/15/2021 10/25/2021 10/26/2021