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2006F02-NBU ORDINANCE NO. 06- F-02 AN ORDINANCE GRANTING A FRANCHISE TO NEW BRAUNFELS UTILITIES FOR ELECTRICITY AND ELECTRIC ENERGY SERVICES WITHIN A PORTION OF THE CITY LIMITS OF THE CITY OF SCHERTZ; AUTHORIZING A FRANCHISE AGREEMENT, A STREET LIGHTING AGREEMENT, AND A LIMITED ACCESS HIGHWAY LIGHTING AGREEMENT RELATING TO THE EXERCISE OF SAME; PROVIDING AN EFFECTIVE DATE; AND REPEALING ALL ORDINANCES OR PARTS OF ORDINANCES IN CONFLICT WITH THIS ORDINANCE. WHEREAS, it is found to be in the public interest and necessary to provide electricity and electric energy services in the City of Schertz, Texas (the "City"); and WHEREAS, the City Council of the City has determined to grant a franchise for such services to New Braunfels Utilities with respect to a portion of the City; and WHEREAS, the City of Schertz has reviewed and is satisfied with the qualifications of New Braunfels Utilities to provide such services; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS: 1. Section 1. Franchise Agreement. The City Council hereby approves the Franchise Agreement attached hereto as Exhibit A and authorizes and directs the Mayor to execute such Agreement and to deliver it to New Braunfels Utilities for execution. Section 2. Street Li ghting Agreement. The City Council hereby approves the Street Lighting Agreement attached hereto as Exhibit B and authorizes and directs the Mayor to execute such Agreement and to deliver it to New Braunfels Utilities for execution. Section 3. Limited Access Highwav Lighting Agreement. The City Council hereby approves the Limited Access Highway Lighting Agreement attached hereto as Exhibit C and authorizes and directs the Mayor to execute such Agreement and to deliver it to New Braunfels Utilities for execution. 20147870.1 All othc::r wdinlll\ces and Parts of onlluanceB in conflict with this ordinance are hEll'eby repealed. Approved on first reading the 6'" ofDecembc::r. Z005. PASSED. APPROVED, aud ADOF'IED the 17 TN day of Ian Section 4. Publication. 1'11e City SecretarY is h"",toy lW.Ihorized and dirl:Ctcd to publUb this crdinance at the: "panas of New Bra1ll'lfeJs Utilities, all as l'eQlIired by the City Charter. Sll:Ct!on 5. Effective Date. This ordinance shall be efreoUVCl tin the date of its fiml adoption. IlI1d the Fnocbioe Agreemll1'lt, the Street LigbrinJ Agreement, and the Limited Access Highway Lighting AgremJem authorized hc::rem shllll be dflldive March 1, 2006. " " n. (Seal of City) ATTEST: ~~ ty S , City of Schertz., Texas ...~-~..~.......,=:-~....... ;/-:"'-",:. ," ~ --'-,~.; ~.. .: '~:;-: ,0:;.. .,"\I.L' ....~:. . -: ,..:,....:: . ,,"',(,.';' " , ,-:;- "'- "'~ . > ;,~.~?> ~.~ ~ ; " . ......,-,... '. ~::':.. # ."'--'--..,., :.......;:.:: ".:<....... ,.,~./.:.~ . ........-........ ...'- . .,,~ ..~~~~..:.-;.... ......-.............~ , , , " 20147871l.1 2 Exhibit A FRANCmSE AGREEMENT between the CITY OF SCHERTZ, TEXAS and NEW BRAUNFELS UTILITIES Whereas, New Braunfels Utilities, an agency of the City of New Braunfels, Texas ("NBU''), provides electric power and energy to certain customers in an area within the corporate limits of the City of Schertz, Texas, a Texas home rule municipality (the "City"), as described on Exhibit A attached hereto (the "Franchise Service Area"); and Whereas, NBU has a certificate of convenience and necessity ("CCN") in accordance with the Public Utility Regnlatory Act ("PURA") to provide electric service in the Franchise Service Area; and Whereas, the City and NBU desire to enter into this Franchise Agreement (this "Agreement'') to establish certain duties and obligations of the City and NBU with respect to NBU's operations within the Franchise Service Area; Now, Therefore, the City and NBU, for the mutual consideration contained herein, hereby agree as follows: Section 1. DESCRIPTION The City hereby grants to NBU the right, privilege, and franchise to erect construct, maintain, operate, use, extend, remove, replace, and repair in, under, upon, over, and across, and along any and all of the present and future streets, squares, parks, lanes, alleys, and public ways and places owned or controlled, or hereafter owned or controlled by the City in the Franchise Service Area and over and across any stream or streams, bridge, or bridges, now or hereafter owned or controlled by the City in the Franchise Service Area, a system of poles, pole lines, transmission and distribution lines, utility related communication lines and facilities, wires, guys, conduits, and other desirable facilities the ''NEU Facilities" deemed necessary or proper by NBU for the purpose of carrying, conducting, conveying, supplying, and selling to the City and the inhabitants of the City of Schertz in the Franchise Service Area or other persons, firms, or corporations within or outside the city limits of the City of Schertz in the Franchise Service Area, electricity and electrical energy for light, heat, power, and for any other purpose for which electricity may be now or hereafter used; to carry, conduct, supply, and distribute electricity and electrical energy by means of said poles, pole lines, transmission and distribution lines, wires, guys, conduits, or other desirable facilities and to sell and distribute the same to the City, the inhabitants of the City of Schertz, and any other persons, firms, or corporations in the Franchise Service Area. The rights and privileges 20147870.1 A-I 20147870.1 A-2 granted to NEU in this Agreement shall be limited to the delivery of electricity and electric energy for light, heat, and power over NEU's electric lines and other facilities and uses ancillary to the delivery of electricity and electric energy. NBU shall be required to obtain separate approval from the City to provide electricity and electric energy services within the City other than in the Franchise Service Area, and, within the Franchise Service Area, for services other than electricity and electric energy services over NBU's electric lines and other related facilities located on public rights of way within the City of Schertz, except NBU shall not be required to obtain separate approval from the City for electric utility related communications lines and facilities in the Franchise Service Area. NBU shall provide the City advance written notice of any construction work it intends to perform in the Franchise Service Area. By a written addendum to this Agreement, the City and NBU shall from time to time modify the description of the Franchise Service Area set forth on Exhibit A to include additional land in NEU's service area that is annexed into the City; in addition, the City and NBU may from time to time otherwise modify the description of the Franchise Service Area set forth on Exhibit A by written agreement. Section 2. CONSTRUCTION, OPERATION AND MAINTENANCE OF FACILITIES NBU may open cut streets, curbs and sidewalks, bore, trim or otherwise manage vegetation or utilize any methods it deems reasonably necessary to construct, operate and maintain the NBU Facilities within the Franchise Service Area. The design and construction of NBU Facilities and NBU's access to and restoration of paved surfaces shall be in accordance with NBU's design and construction standards. Information concerning and copies of NBU's design and construction standards shall be made available to the City upon request by the City. Street cuts and restoration of paved surfaces shall be subj ect to ordinances that may be adopted by the City to the extent that such requirements are not in conflict with the following provisions. a. Prior to starting any construction work, NBU shall give five (5) days written notice of the scope and duration of the work to the official designated by the City. Prior notice maybe reduced or waived by the City in order to allow the work to proceed. In the event NBU determines there is an emergency, NBU may act without any prior notice, but must provide notice to the City as soon as practicable. b. The surface of any street, alley, or public way or place, City-maintained landscaping and any other improvement disturbed by NBU or its contractors shall be restored by NBU within a reasonable time after the completion of the work to the original condition, reasonable wear and tear excepted. No street, alley, or public way or place may be encumbered by NBU for a longer period than is reasonably necessary to execute the work. NBU must continue to maintain the integrity of the portion of any paved surface over NBU Facilities, as restored by NBU during the work, as long as NBU Facilities remain in use by NBU at that location. 20147870.1 A-3 Structures, lines, guys, and other facilities shall be erected by NBU so as to interfere as little as reasonably possible with traffic over streets and public ways. In the placement of new overhead structures, lines, guys, and other facilities, NBU will use front lot line easements and dedicated alleys when such front lot line easements and dedicated alleys are reasonably available and have sufficient width to allow access by construction and maintenance equipment commonly used by NBU, as reasonably determined by NBU. To the extent reasonably possible NBU will place buried lines in areas where pavement or sidewalks will not be disturbed. The City will continue to use its best efforts to support NBU's need for easement conditions that do not undnly restrict NBU's use of any easement. The City will maintain appropriate ordinances that limit the use of utility easements to uses that do not substantially interfere with safe and effective operation of NBU's installed facilities. Upon written notification by NBU to the City of an encroachment in a utility easement substantially interfering with the safe and effective operation ofNBU's installed facilities, the City will take reasonable action to resolve the encroachment. Nonstandard poles to enhance specified special development projects will be installed and maintained at the expense of the developer or owner's association making such request; but if there is no developer or owner's association, at the expense of the City if the City makes such request. Section 3. AGREEMENT SUBJECT TO ORDINANCE, STATUTES The rights, privileges, and permits herein granted shall at all times be subject to the ordinances and regulations of the City from time to time in effect, as modified or limited by the express terms of this Agreement. Nothing in this agreement shall be construed to limit NBU's right to provide electric service according to its CCN within the Franchise Service Area or limit application of PURA, subject to the City's statutory franchising rights. Section 4. NOTICE OF SHIFT OR RELOCATION The City, if reasonably necessary to make way for its sewers, water lines, streets, or other public works, may require any structures, lines, guys, or other facilities of NBU to be shifted or relocated fromlCstteet or right-of-way to a newpositionin a street or other available right-of-way at NBU's expense. The City shall use its best efforts to give NBU at least sixty (60) days prior written notice of any such required shift or relocation. Any such changes resnlting from the request of or action by any developer of property shall be at the expense of such developer. Section 5. INDEMNITY TO THE EXTENT ALLOWED BY LAW, NBU AND THE CITY SHALL HOLD EACH OTHER HARMLESS FROM ALL EXPENSE OR LIABILITY FOR ANY ACT OR NEGLECT OF THE OTHER PARTY HEREUNDER. Section 6. NEW RESIDENTIAL DEVELOPMENT FACILITIES NBU agrees to reasonably cooperate with the City and residential developers with Section 9. PAYMENT FOR STREET RENTAL respect to installation of new facilities, lines and equipment underground in new residential developments consistent with NBU connection policies. Section 7. RIGHTS AND PRIVILEGES Nothing herein contained shall be construed as conferring upon NBU any exclusive rights or privileges of any nature whatsoever, except NBU shall have the exclusive right to set its own rates, including but not limited to setting a pass-through rate of franchise fees. Section 8. EFFECTIVE PERIOD, TERMINATION This Agreement shall be in force and effect for a period of twenty (20) years from and after the date which is thirty (30) days after the date of the City's fmal adoption of this Agreement (the "Effective Date") as shown on the signature page hereof, and so long thereafter as same is not terminated by written notice given by either party to the other of not less than two (2) years prior to the date upon which this Agreement shall terminate. In consideration of the rights granted to NBU herein, NBU, during the term of this Agreement, shall pay quarterly (payable on or before the sixtieth (60th) day after the end of each calendar quarter) a fee of .0023 rnils per kilowatt hour of electric energy delivered by NBU to customers within the Franchise Service Area during such calendar quarter. The street rental charge described in this section is in lieu of all other fees or charges and the City may not impose or collect, nor attempt to impose or collect, any charge or fee in connection with the construction, operation or maintenance of NBU Facilities within the Franchise Service Area. Section 10. REPORTING The City reserves the right, upon reasonable prior written notice to NBU, to require such reports from NEU setting out such matters concerning kilowatt hours of energy delivered by NBU in the Franchise Service Area supporting the payment of street rental as the City may elect, and such reports may be required at reasonable intervals (but not to exceed more than one report per fiscal year of operation) as may hereafter be specified by the City Council of the City. However, such reportable information is limited to public information. Section 11. OPERATIONS NBU shall provide personnel to operate the NBU Facilities in the Franchise Service Area in a manner consistent with policies adopted by the NBU Board of Trustees. NBU agrees to furnish electrical service to consumers in the Franchise Service Area in accordance with the laws of the State of Texas as required under its eCN. Section 12. SEVERABILITY 20147870.1 A-4 :/lllll'/870.1 A-S 1'hCl PJ'OvisioD5 of this ~mt ate oevemble, and if any ae.:tion. prO-v1Ac>n. or part lhll1'eOf be dsclared iDvaJid theu. it is hereby dec:lami the intent of the parties that tho :rern,"";'I!J pill1ll of this AgreemCQt .....ould be ~ notwitbstandiDg such invalid part or parts, and 1he invalidity of any part1t:U1!lr section. provision, OJ' part shall not invalidate this Agtel'J1Jent. UIIless such invalidlllion materially changes the rights or obligatiODli of either party, as determined in that patty's r~le discretion. Section 13. ASSIGNMENT This agreement may be a~gned by NBU upon mutual writren agreement ofllie City and NBU. Sel:lion 14. HEADINGS Tho HCliuunss of the SeetiollS ill this u.greemcrrt are tot OZ'ganizatiollal pU!]'O!IIlS only. They have no separate meaning lIJld &hall not be read as affecting the language of the scctiDJlil. Section ]5. AunlORlZATION By its ex-mon below, NBU accepts the ordln.anc:e whicb IIUthOrizes this francb:iBe in acc;ordance with Section 4.09(B)(2) of the City Charter of lbe City of Scbetfz, wbjec.t to NBU's rigtn 10 provide service within the Franchise S..mce Area uudt:r ita CCN. Date of final adoption by NBU: SeptembatZ9. Z005. Date of final adoption by 1110 City: January 17. 2006. Eft'ectivlI Dsto: Milld11. 2006. v-'~-~ Ma:yor NEW BRAUNFELS Ul1LrI'IES -----D~2.~ B~ ~l. ',...,- ~ Trtle; 'E) ~ I 20147870.1 A-6 EXHffiIT A Franchise Service Area N W*E S '(o\c;1J. rrn~ @ t~i:lU New Braunfels Utilities ft"~\,.lt S~\C.Q.. R,~ Exhibit B Street Lighting Agreement STREET LIGHTING AGREEMENT This Street Lighting Agreement (this "Agreement") is between the CITY OF SCHERTZ, TEXAS (the "City'') and NEW BRAUNFELS UTILITIES, an agency of the City of New Braunfels, Texas ("NBU''). WITNESSETH: 1. For the consideration hereinafter provided, and subject to the terms of this Agreement and NEU's Connection Policy, NEU will install, own, operate and maintain such street lighting units requested by the City at locations it may designate from time to time within the Franchise Service Area described in the Franchise Agreement effective March I, 2006 (the "Franchise Agreement'') between the City and NEU; provided, however, this Agreement does not pertain to street lights on Interstate Highway 35. 2. Unless otherwise herein stated, a street light unit shall mean a minimum of 150 watt High Pressure Sodium (BPS) self-contained package type light, or its equivalent, in all respects thereof installed and specified in the NEU Connection Policy, and owned and maintained by NEU. 3. All street lights will be operated daily from dusk to dawn as controlled by either automatic photoelectric cells or by pilot circuits manually operated by NEU. If any light is not in operation on any night, such outage shall be reported to NEU by the City, and if a replacement is not made within 36 hours after receipt of notice by NEU, the light will be billed on a basis prorated to allow for the period of outage after notice is received. -6-_c....~# 4. NBU will bill the City on a monthly basis a flat rate of $16.56 per light standard throughout the term of this Agreement. 5. NEU will replace without additional cost to the City any lamps that are burned out or show an abnormal deficiency in lumen output as a result of normal operation. The City shall have the right to test the lumen output or to have tests made by competent agencies and NBU agrees to correct any deficiency in lumen output within 96 hours after receipt of notice of such deficiency from the City. 6. NBU will provide all maintenance of the street lighting equipment damaged by the elements such as wind, rain, lightning, etc., without additional cost to the City. NEU will provide maintenance up to a maximum cost of $50.00 in any monthly billing period for damage to the street lighting equipment caused by vandalism or apparent vandalism. The City will reimburse NEU for all costs of such required 20147870.1 B-1 20147870.1 B-2 maintenance in excess of the $50.00 maximum allowed during anyone monthly billing period. The monthly allowances for such excess maintenance costs shall not be accumnlated from month to month. Whenever a lamp is replaced, regardless of the type of lamp, all damaged or broken parts of the street light equipment will be replaced. If the damage is apparently the result of vandalism, the cost of all such excess maintenance will be billed to the City under the terms stated. If the damage is apparently the result of an accident, NEU will initiate a claim for damages caused by the accident, but the City must reimburse the costs incurred by NED (including the costs of repair or replacement of the street light unit and claims expense) and pursue the claim. 7. NED agrees to reasonably cooperate with the City and subdivision developers with respect to the installation of street lights in new subdivisions within the Franchise Service Area consistent with the NED Connection Policy. All such new street light facilities installed pursuant to NED Connection Policy will thereafter be subject to the terms of this Agreement. The City represents that its ordinances regnlating subdivisions and uses of land require the developer or owner to provide at its cost street lighting facilities. 8. Should the City desire installation of street lights with a density or having a design different than (i) described in Paragraph 2, (ii) provided for in the NED Connection Policy, or (iii) otherwise available from NED as determined in NED's reasonable discretion at some future time as a standard or optional fixture, then such street lights shall be furnished, installed and owned by the City or by third parties, and the energy required for such street lights shall be measured through an NED electric meter and billed as a separate account. NED shall not be responsible for maintenance of such street lights except pursuant to a separate maintenance agreement. 9. In the event any area in which street lighting has been placed should no longer be used, either as business property or residential, to such extent that street lighting would not be required under the terms of this Agreement, then the street lights in such area may be removed by NBU. NBD may make such a determination or non-use in its reasonable discretion and shall provide the City with written notice of any such determination at least thirty (30) days prior to any removal. ".".i< 10. This Agreement shall be in force and effect for a period of 20 years from and after the date which is 30 days after the date of the City's fInal adoption of this Agreement (the "Effective Date") as shown by the signature page hereof, and so long thereafter as same is not terminated by written notice given by either party to the other of not less than 2 years prior to the date upon which this Agreement shall terminate. 11. Except as set forth in Paragraph 8, all unmetered installations provided for hereunder shall remain the property ofNBD. Cl1Y OF SCJn:RTz" TEXAs IN WITNESS WHEREOF. W Parties have \;lI\/sed this Agreement to be necuted in duplicate urigizlaJs by their duly authorized officers, as of th. effeetive date of the Franchise AgreaJU:nt. %DI47870.1 B~~ ~~< Don l' or City M8llager NEW BRAlJNFEl,S UTILITIES :G~~~J1~ 110: (J.BD B-3 CIlY OF SCHERTz. TEXAS BY;~ ~::-:> ::?'?"" Z; <-- Dont:or City Manager NZW BRAUNnLs VTILlTlE$ ~of2:2 Nama; ~~~~' ~~~L<' Its: (" e () __ Eu.lbit C LIMITED ACCESS BICHWAY LIGHTING AGREEMENT This Limited A~ss Highway Lighting Asr=ent (this "~q is between tho CITY OF SCHERTZ. TEXAs (tho "City") find N.SW BkAVNFBLs lJTII..IT:rBS. anllgeney of the City ofNew Branuf'elB, Tc:us ("mIl"). WITNESSETHI 1. For the consi~Ol1 stated and subjtct to dw termJ ofthillAgreemll!lt, NBU will provide el~ pOVfft at the meter fOJ' lItrcet lighting on lntersrate Highway 35 (the "Limited A~ Hlghwa,") l5itwrted within the Prauohise 5eM~e Area described In w Frm:hise Agreement etf'eGtive March 1.2006 (rhe "Franchise Agreemmf") betwellll tho CltyandNBU. 2. AU e]ectrio enetBY wiD be metered and billed ro the City iii NBU'lI cost of service. The ratCll for thill serviCe will be NCDJllUlaed by the.'Board of TIUIltees of NBV and approved by the City Cotmcil of the City of New Braunfels, lIS MOessary. 3. The cost ofinmUation oithe m-m lighting lIJld el~ melering facilitil!lS will be botee by the City or olber third puty. 4. NBU will maiDtain and repair such street light liIc:ilities along the Limited A~ess Highway 'Within the Pnuwmae SllNice .Area whc:n T&quested to do so by the City lit NBU's COli\' of SClrYic:e, plus IlI:l admil'listnltive fee of] 0% of BUOJ1 C05t. S. Tms Agreement lIball nlIIlain in forc:e illld effart until the ea:rJic:T Qf fa) tb.. temUulltion of the Fl1Il1Chise Agreement or (b) the terminatiOl1 of the agrelll2Jent between the City a:nd tile Stllte ofr~as with feSp~ to BUd! lighting facilitiq WOl1, th.e Limited Access Highway. IN vvtrNEss WHBREOF, the parties have caused tbis Agrtllment lD be c:xecuted in duplicate origimls by their duly authoriud ofHeel5, as ot the effective dale of the Franchil5e AgrlleIJJmt. 20147S'to.J C.I ,. 'P,<N' Of'\q1N~NPlifiFl.6.Nr- INS A FI3ANCfjISE;ro NEW BRAUNFELS:,UTIUTIES FOR ELECTRiCITY ENERGY SER- VICES .wITi{jNAPORtlON O~ THE. CflYPt,llJ;SOFTi{E (;ITY ()F.SeHEflTZ;, AUTflO. RIZIN.G, ,A 'fRANCi<llSE AGRE'EMENT" A S:fRE.gT LIGHTING AGREEMENT,AND AUMITED'ACCEl'lS'HtGH~ . ,WAY L1GHTlI<IGAGREEMENT. /" .. .... .... ".\'-:', ,',', -: ,RELil,TlNG J;O'-:rH~EX.ER-' !CISEOF SAtVlE;PFIOIfIOiNG' AN EFFECTIVE DATE; AND REPEALING ALL, ORDL.' NANCES OR PARTS OF Before me, the undersigned authority, .on thisday personally appeared Helen 1. LI~mI~~~cg~6~~~I..:S~- by me duly sworn, says on oath that she IS Publisher of the CommerCial Recorder, a", Approvedl;lnfi'slcte!ldii)g general circulation in the City of San Antonio, in the State and County aforesaid, andl~..6jh.,ofQG<jE!~r,2005'" for An Ordinance here to attached has been published in every issue of said news~, 121t~dYTOka:.CllySec~!y:. . following days, to wit: . '. . . . Affidavit of Publisher ~ fO I:t-- J.o;} (}J J-O JJ~ ~ ~~; 07 yA /'1 lA.if .(\? STATE OF TEXAS COUNTY OF BEXAR City of Schertz 12/15/2005. ~2 .fl ~(f . PUBLIC_NOTICE . AN-ORDINANCE Sworn to and subscribed before me this 15th day of of December, 2005. / W,~;~y'jl~, STELLA A. OROZCO "l. ~'fi NOiARY PUBLIC " "STATE OFfeXAS M~ Comm.II... oa.."a009 .. ~ A. ()~~ Notary Public in and for Bexar County, Texas.