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Editor’s note–Also referred to as "Oncor," Oncor
Electric Delivery Company changed its name to TXU Electric Delivery
Company, then in 2007, TXU was acquired by Energy Future Holdings
Corp.
Subject to the terms, conditions and provisions of this division,
the City of Odessa, hereinafter called “city,” hereby
grants its consent to the use of its present and future streets, alleys,
highways and public grounds by Texas Electric Service Company, its
successors as allowed herein, hereinafter called “company,”
for the purposes of constructing, maintaining and operating in, along,
under and across the present and future streets, alleys and public
ways of the city, electric light and power lines, with all necessary
or desirable appurtenances (including underground conduits, poles,
towers, wires and transmission lines, telegraph and telephone lines
for its own use) for the purpose of supplying electricity to the city,
the inhabitants thereof and persons and corporations beyond the limit
thereof, for light, heat, power or other purposes; said consent being
granted for a term of fifty (50) years from the date this division
is adopted and approved.
(Ordinance 70-11, sec. 1, adopted 2/14/70; Ordinance 2018-19 adopted 5/8/18)
The service to be furnished hereunder by company shall be first
class in all respects, considering all circumstances, and company
shall maintain its property in good repair and working condition at
all times except when prevented from doing so by forces and conditions
not reasonably within the control of said company.
(Ordinance 70-11, sec. 2, adopted 2/14/70; Ordinance 2018-19 adopted 5/8/18)
Poles or towers shall be so erected so as not to unreasonably
interfere with traffic over the streets and alleys. Company’s
property and operations within the city shall be subject to such regulation
by the city as may be reasonably necessary for the protection of the
general public, and company shall comply with all valid charter and
ordinance provisions that the city has adopted for that purpose.
(Ordinance 70-11, sec. 3, adopted 2/14/70; Ordinance 2018-19 adopted 5/8/18)
(a)
The
existing electric franchise ordinance between the city and Oncor Electric
Delivery Company is amended as follows:
(1)
Effective January 1, 2002, the franchise fee due from Oncor shall
be a sum comprised of the following:
(A)
A charge, as authorized by section 33.008(b) of PURA, based on each
kilowatt hour of electricity delivered by Oncor to each retail customer
whose consuming facility’s point of delivery is located within
the city’s municipal boundaries and as specified by Oncor to
the city by letter dated January 21, 2002.
(i)
The franchise fee due pursuant to section 33.008(b) of PURA
shall be payable in accordance with the existing electric franchise;
and
(B)
A sum equal to four percent (4%) of gross revenues received by Oncor
from services identified in its “tariff for retail delivery
service,” section 6.1.2, “discretionary service charges,”
items DD1 through DD24, that are for the account or benefit of an
end-use retail electric consumer.
(i)
The franchise fee amounts based on “discretionary service
charges” shall be calculated on an annual calendar year basis,
i.e., from January 1st through December 31st of each calendar year.
(ii)
The franchise fee amounts that are due based on “discretionary
service charges” shall be paid at least once annually on or
before April 30th each year based on the total “discretionary
service charges” received during the preceding calendar year.
(2)
Oncor Franchise Fee Recovery Tariff:
(A)
Oncor may file a tariff amendment(s) to provide for the recovery
of the franchise fee on discretionary service charges.
(B)
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 Oncor 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 appeals in support of
the 100% recovery of such franchise fees by Oncor.
(C)
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 Oncor.
(b)
Notwithstanding
anything to the contrary in section (a)(1) hereof, if TU Electric
files general rate cases and the city incurs cumulative expenses,
otherwise reimbursable by TU Electric under section 24 of the Public
Utility Regulatory Act or similar or successor law, in excess of $4
million, then in such event, TU Electric shall reimburse all of the
expenses incurred by the city in connection with all general rate
cases filed during the period ended fifteen (15) years from the effective
date hereof in excess of said $4 million. The term “general
rate case” as used in this section means a rate case initiated
by TU Electric 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 TU Electric’s overall revenues are
determined in setting such rates. City agrees to exercise reasonable
best efforts, considering the facts and circumstances, to keep its
expenses on average to under $1,000,000.00 per general rate case.
(c)
Notwithstanding
the provisions of section 1 hereof, TU Electric will continue to reimburse
the city’s ratemaking expenses, if any, in connection with the
appeal and any remand of Public Utility Commission of Texas Docket
No. 9300 that are otherwise reimbursable under section 24 of the Public
Utility Regulatory Act, and will continue to reimburse the city’s
ratemaking expenses, if any, in connection with Public Utility Commission
of Texas Docket No. 11735 that are otherwise reimbursable under section
24 of the Public Utility Regulatory Act to the extent that said ratemaking
expenses are incurred through the entry of the last action by the
Public Utility Commission of Texas (i.e., the said Commission’s
order overruling the last motion for rehearing) in said Docket No.
11735; the city hereby agrees that any ratemaking expenses incurred
in connection with said Docket No. 11735 that the city incurs on appeal
of said order will be the city’s sole responsibility and further
agrees -- in the events that the city is a participant in the joint
intervention of cities managed by the steering committee of TU Electric
Service Area Cities intervening in Docket No. 11735, that the city
decides to continue to participate with the steering committee in
such appeal of said order, and TU Electric is required to reimburse
said steering committee for ratemaking expenses under section 24 of
the Public Utility Regulatory Act that are incurred on appeal of said
order in Docket No. 11735 -- to reimburse TU Electric the city’s
share of reimbursable expenses related to said appeal and owed by
TU Electric to said steering committee determined by the methodology
chosen by the said steering committee (the city to notify TU Electric
of the method so chosen by the steering committee prior to the submission
of an invoice by the steering committee for the payment by TU Electric
of said reimbursable expenses related to said appeal).
(d)
In
all respects, except as specifically and expressly amended by this
division, the existing effective franchise ordinance heretofore duly
passed by the governing body of the city and duly accepted by Oncor
shall remain in full force and effect according to its terms until
said franchise ordinance terminates as provided therein.
(Ordinance 70-11, sec. 4, adopted 2/14/70; Ordinance 93-29, adopted 6/22/93; Ordinance
2002-36, adopted 8/27/02; Ordinance 2018-19 adopted 5/8/18)
Nothing herein contained shall ever be held or construed to
confer upon the company exclusive rights or privileges of any nature
whatsoever.
(Ordinance 70-11, sec. 5, adopted 2/14/70; Ordinance 2018-19 adopted 5/8/18)
Company shall indemnify, save and hold the city harmless from
any and all claims for injuries or damages to persons or property
occasioned by, or in any way arising out of, the construction, reconstruction,
maintenance, operation or repair of company’s facilities or
by the conduct by company of its business within the city unless such
injuries or damages are caused by the sole negligence of the city.
(Ordinance 70-11, sec. 6, adopted 2/14/70; Ordinance 2018-19 adopted 5/8/18)
(a)
The
city council may declare a forfeiture of this franchise for a continuing
violation by company of any of the terms and provisions of this franchise
in accordance with the following procedures:
(b)
The
city council shall give written notice to company specifying in detail
all violations upon which the forfeiture is claimed. Such written
notice shall be by certified mail addressed to the president of company,
with a copy of same to be personally delivered to its city manager.
Company shall have forty-five (45) days after the receipt of such
notice within which to correct the specified violation or violations.
The city council, for good cause shown to it may extend the above
mentioned time period of forty-five (45) days allowed to company by
this section for the correction of the specified violation or violations.
Such violation or violations shall be deemed to have been corrected
unless the city council notifies company to the contrary within thirty
(30) days after the expiration of said period of forty-five (45) days,
such notice to be given in the same manner as the initial notice of
violation. If the city council, within such period of thirty (30)
days, notifies company that such violation or violations have not
been corrected, this franchise shall automatically become null and
void at the expiration of ten (10) days from the receipt of such notice
unless within such period of ten (10) days company brings suit in
a court of competent jurisdiction to determine whether such claimed
violation or violations exist, in which case this franchise shall
not be forfeited unless and until company shall have failed to correct
any violation or violations of this franchise, after same are determined
to exist by final judgment of the court, within such period of time
as the court may determine to be reasonable.
(c)
For
purposes of this section concerning forfeiture, company shall not
be deemed to be in default of performance of any provision of this
franchise when its failure to perform any such provision is due to
shortages of material, supplies and equipment beyond the control of
company, or to fires, strikes, riots, storms, floods, war or to governmental
regulations, or for any other cause not reasonably nor practicably
within the control of company.
(Ordinance 70-11, sec. 7, adopted 2/14/70; Ordinance 2018-19 adopted 5/8/18)
This franchise ordinance, when accepted by company as provided
herein, shall supersede and replace all existing franchise ordinances
granted to Texas Electric Service Company but shall not have the effect
of repealing any existing city ordinances relating to public utilities
generally, except to the extent that same may be in conflict with
this franchise ordinance.
(Ordinance 70-11, sec. 8, adopted 2/14/70; Ordinance 2018-19 adopted 5/8/18)
If any provision, section, subsection, paragraph, sentence,
clause or phrase of this division is for any reason held by a court
of competent jurisdiction to be void or invalid, or for any reason
unenforceable, such invalidity shall not affect the remaining portions
of this division, it being the intention of the city council in adopting
this division, and the agreement of company in accepting same, that
no portion of this division shall become inoperative or fail by reason
of the invalidity of any other portion of it, and to this end, each
provision, section, subsection, paragraph, sentence, clause or phrase
of this division is declared to be severable.
(Ordinance 70-11, sec. 9, adopted 2/14/70; Ordinance 2018-19 adopted 5/8/18)
This franchise shall not be transferred or assigned, in whole
or in part, without the express consent of the city, such consent
to be evidenced by an ordinance of the city council. This section
shall not prevent, nor in any manner affect, any legal foreclosure
against company by any of its mortgagees or lienholders, nor shall
it prevent or in any manner affect the transfer of this franchise
as part of a merger or consolidation of the company with any company
or companies with which it is presently affiliated.
(Ordinance 70-11, sec. 10, adopted 2/14/70; Ordinance 2018-19 adopted 5/8/18)
This division shall take effect upon its final passage and Oncor’s
acceptance. Oncor shall, within thirty (30) days from the passage
of this division, file its written acceptance of this division with
the office of the city secretary in substantially the following form:
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To the Honorable Mayor and City Council:
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Oncor Electric Delivery Company, acting by and through the undersigned
authorized officer, hereby accepts i35n all respects, on this the
_____ day of __________, 20_____, Ordinance No. __________ amending
the current electric franchise between the City and Oncor and the
same shall constitute and be a binding contractual obligation of Oncor
and the City.
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Oncor Electric Delivery Company
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By _____________________
Vice President
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(Ordinance 70-11, sec. 11, adopted 2/14/70; Ordinance 93-29, sec. 6, adopted 6/23/93; Ordinance 2002-36, sec. 2, adopted 8/27/02; Ordinance 2018-19 adopted 5/8/18)
