[1]
Editor's note–Former division 3 pertaining to Texas Electric Service Company, was repealed and replaced with similar provisions by Ordinance 2025-12 adopted 3/11/2025. Prior to the replacement, this article derived from the following: Ordinance 70-11, adopted 2/14/70; Ordinance 93-29, adopted 6/22/93; Ordinance 2002-36, adopted 8/27/02 and Ordinance 2018-19 adopted 5/8/18.
There is hereby granted to Oncor Electric Delivery Company, LLC, its successors and assigns (herein called "company"), the right, privilege and franchise to construct, extend, maintain and operate in, along, under and across the present and future streets, alleys, highways, easements held by the city to which the city holds the property rights in regard to use for utilities, public ways and other public property ("public rights-of-way" or "rights-of-way") of the City of Odessa, Texas (herein called "city") electric power lines, with all necessary or desirable appurtenances (including underground conduits, poles, towers, wires, transmission lines, telephone and communication lines, and other structures for company's own use) (herein called "facilities"), for the purpose of delivering electricity to the city, the inhabitants thereof, and persons, firms and corporations beyond the corporate limits thereof, for the term set out in section 4-20-71.
(Ordinance 2025-12 adopted 3/11/2025)
Poles, towers, and other structures shall be so erected as not to unreasonably interfere with (1) traffic over streets, alleys, and highways; (2) existing gas, electric, or telephone fixtures; or (3) existing water hydrants or mains, drainage facilities, or sanitary sewer facilities.
(Ordinance 2025-12 adopted 3/11/2025)
(a) 
The city reserves the right to lay, and permit to be laid, storm, sewer, gas, water, wastewater, and other pipelines, cables, and conduits, or other improvements and to do and permit to be done any underground or overhead work that may be necessary or proper in, across, along, over, or under public rights-of-way occupied by company. The city also reserves the right to change in any manner any curb, sidewalk, highway, alley, public way, street, utility lines (or in the case of utility line owned by company, to require that change by company), storm sewers, drainage basins, drainage ditches, and the like. The city shall have the ability at any time to require company to repair, remove or abate any distribution pole, wire, cable, or other distribution structure that is determined to be unnecessarily dangerous to life or property. After receipt of notice, company shall either cure said dangerous condition within a reasonable time or provide city with a written explanation of why said condition is not unnecessarily dangerous to life or property. City shall provide company with at least 30 days' notice when requesting company to relocate facilities and shall specify a new location for such facilities along the public rights-of-way. Company shall, except in cases of emergency conditions or work incidental in nature, obtain a permit, if required by city ordinance, prior to performing work in the public rights-of-way, except in no instance shall company be required to pay fees or bonds related to its use of the public rights-of-way, despite the city's enactment of any ordinance providing the contrary. In the case of an emergency, company shall notify city of such emergency, and any work performed incidental to that emergency, as soon as reasonably practicable. "Emergency" is any situation in which harm to public health, safety, or welfare will likely occur unless immediate remedial action is taken. Company shall construct its facilities in conformance with the applicable provisions of the National Electrical Safety Code. City-requested relocations of company facilities in the public rights-of-way shall be at the company's expense; provided, however, if the city is the end use retail customer (customer who purchases electric power or energy and ultimately consumes it) requesting the removal or relocation of company facilities for its own benefit, or the project requiring the relocation is solely aesthetic/beautification in nature, it will be at the total expense of the city. Provided further, if the relocation request includes, or is for, the company to relocate above-ground facilities to an underground location, city shall be fully responsible for the additional cost of placing the facilities underground.
(b) 
If any other corporation or person (other than city) requests company to relocate company facilities located in city rights-of-way, the company shall not be bound to make such changes until such other corporation or person shall have undertaken, with good and sufficient bond, to reimburse the company for any costs, loss, or expense which will be caused by, or arises out of, such change, alteration, or relocation of company's facilities. City may not request the company to pay for any relocation which has already been requested, and paid for, by any entity other than city.
(c) 
If city abandons any public rights-of-way in which company has facilities, such abandonment shall be conditioned on company's right to maintain its use of the former public rights-of-way and on the obligation of the party to whom the public rights-of-way is abandoned to reimburse company for all removal or relocation expenses if company agrees to the removal or relocation of its facilities following abandonment of the public rights-of-way. If the party to whom the public rights-of-way is abandoned requests the company to remove or relocate its facilities and company agrees to such removal or relocation, 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 right-of-way, the expense of any right-of-way acquisition shall be considered a relocation expense to be reimbursed by the party requesting the relocation.
(Ordinance 2025-12 adopted 3/11/2025)
(a) 
In consideration of the granting of this franchise, company shall, at its sole cost and expense, indemnify and hold the city, and its past and present officers, agents and employees harmless against any and all liability arising from suits, actions or claims regarding injury or death to any person or persons, or damages to any property arising out of or occasioned by the intentional and/or negligent acts or omissions of company or any of its officers, agents, or employees in connection with company's construction, maintenance and operation of company's facilities in the city public rights-of-way, including any court costs, reasonable expenses and reasonable defenses thereof.
(b) 
This indemnity shall only apply to the extent that the loss, damage, death, or injury is attributable to the negligence or wrongful act or omission of the company or its officers, agents, or employees, and does not apply to the extent such loss, damage, death, or injury is attributable to the negligence or wrongful act or omission of the city or the city's officers, agents, or employees or any other person or entity. This provision is not intended to create a cause of action or liability for the benefit of third parties but is solely for the benefit of company and the city.
(c) 
In the event of joint and concurrent negligence or fault of both company and the city, responsibility and indemnity, if any, shall be apportioned comparatively between the city and company 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 state law. Further, in the event of joint and concurrent negligence or fault of both 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.
(d) 
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 business days of city's written notice that city is invoking its right to indemnification under this franchise. 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 for all reasonable defense costs incurred by city, except as otherwise provided in section 4-20-64(b) and (c).
(Ordinance 2025-12 adopted 3/11/2025)
This franchise is not exclusive, and nothing herein contained shall be construed so as to prevent the city from granting other like or similar rights, privileges and franchises to any other person, firm, or corporation. Any franchise granted by the city to any other person, firm, or corporation shall not unreasonably interfere with this franchise.
(Ordinance 2025-12 adopted 3/11/2025)
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 said 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, street taxes, bonds, street or alley rentals, 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 the following:
(1) 
A final quarterly payment will be made on or before December 15, 2024, for the basis period of July 1, 2024, through September 30, 2024, and the privilege period of July 1, 2025, through September 30, 2025, in accordance with the provisions in the previous franchise.
(2) 
As authorized by section 33.008(b) of PURA, the original franchise fee factor calculated for the city in 2002 was 0.003046 (the "base factor"), multiplied by each kilowatt hour of electricity delivered by company to each retail customer whose consuming facility's point of delivery is located within the city's municipal boundaries for determining franchise payments going forward.
(A) 
Due to a 2006 agreement between company and city the franchise fee factor was increased to a franchise fee factor of 0.003198 (the "current factor"), multiplied by each kilowatt hour of electricity delivered by company to each retail customer whose consuming facility's point of delivery is located within the city's municipal boundaries on a quarterly basis.
(B) 
However, consistent with the 2006 agreement, should the Public Utility Commission of Texas at any time disallow company's recovery through rates of the higher franchise payments made under the current factor as compared to the base factor, then the franchise fee factor shall immediately revert to the base factor of 0.003046, and all future payments, irrespective of the time period that is covered by the payment, will be made using the base factor.
(C) 
Company shall make quarterly payments as follows:
Payment Due Date
Basis Period
Privilege Period
(Following Pmt.)
March 15
Oct. 1 - Dec. 31
Oct. 1 - Dec. 31
June 15
Jan. 1 - Mar. 31
Jan. 1 - Mar. 31
September 15
Apr. 1 - Jun. 30
Apr. 1 - Jun. 30
December 15
Jul. 1 - Sept. 30
Jul. 1 - Sept. 30
(i) 
The first payment hereunder shall be due and payable on or before March 15, 2025, and will cover the basis period of October 1, 2024, through December 31, 2024, and the privilege period of October 1, 2025, through December 31, 2025. If this franchise is not effective prior to the first quarterly payment date, company will pay any payments due within 30 days of the effective date of this agreement. The final payment under this franchise is due on or before June 15, 2044, and covers the basis period of January 1, 2044, through March 31, 2044, and the privilege period of January 1, 2045, through March 31, 2045; and
(ii) 
After the final payment date of June 15, 2044, company may continue to make additional quarterly payments in accordance with the above schedule. City acknowledges that such continued payments will correspond to privilege periods that extend beyond the term of this franchise and that such continued payments will be recognized in any subsequent franchise as full payment for the relevant quarterly periods.
(3) 
A sum equal to 4% of gross revenues received by company from services identified as DD1 through DD24 in section 6.1.2, "Discretionary Service Charges" in Oncor's Tariff for Retail Delivery Service (tariff), effective 1/1/2002, that are for the account and benefit of an end-use retail electric consumer. Company will, upon request by city, provide a cross reference to discretionary service charge numbering changes that are contained in company's current approved tariff.
(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", as set out in section 4-20-66(3), received during the preceding calendar year. The initial discretionary service charge franchise fee amount will be paid on or before April 30, 2025, and will be based on the calendar year January 1 through December 31, 2024. The final discretionary service charge franchise fee amount will be paid on or before April 30, 2046, and will be based on the calendar months of January 1, 2045, through March 31, 2045.
(C) 
Company may file a tariff or tariff amendment(s) to provide for the recovery of the franchise fee on discretionary service charges.
(D) 
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 appeals in support of the 100% recovery of such franchise fees by company.
(E) 
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.
(F) 
In the event of a regulatory disallowance of the recovery of the franchise fees on the discretionary service charges, company will not be required to continue payment of such franchise fees.
(4) 
With each payment required by this section, 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.
(5) 
With each payment of compensation required by this section, 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 from services identified in its "Tariff for Retail Delivery Service," Section 6.1.2, "Discretionary Service Charges," Items DD1 through DD24.
(6) 
If either party discovers that company has failed to pay the entire or correct amount of compensation due to the city under this section, the correct amount shall be determined by mutual written agreement between the city and company and company shall pay the correct amount to the city within 30 days of such determination. Any overpayment to the city through error or otherwise will, at the sole option of the city, either be refunded to company by the city within 30 days of such determination or offset against the next payment due from company. Acceptance by either party of any payment due under this section shall not be deemed to be a waiver by either party of any claim of breach of this franchise, nor shall the acceptance by either party of any such payments preclude either party from later establishing that a larger amount was actually due or from collecting any balance due. Nothing in this section shall be deemed a waiver by either party of its rights under law or equity.
(7) 
Any late or delinquent payments due the city by company under this franchise shall accrue interest. Interest on late or delinquent payments shall be calculated in accordance with the interest rate for customer deposits established by the Public Utility Commission of Texas in accordance with the Texas Utilities Code, section 183.003, as amended for the time period involved.
(Ordinance 2025-12 adopted 3/11/2025)
This section applies only if, after the effective date of this franchise agreement, company enters into a new municipal franchise agreement or renews an existing municipal franchise agreement with another municipality that provides for a different method of calculation of franchise fees for use of the public rights-of-way than the calculation under PURA, section 33.008(b), which, if applied to the city, would result in a greater amount of franchise fees owed the city than under this franchise agreement. In the event of an occurrence as described in this section, city shall have the option to:
(1) 
Have company select, within 30 days of the city's request, any or all portions of the franchise agreement with the other municipality or comparable provisions that, at company's sole discretion, must be considered in conjunction with the different method of the calculation of franchise fees included in that other franchise agreement; and
(2) 
Modify this franchise agreement to include both the different method of calculation of franchise fee found in the franchise agreement with the other municipality and all of the other provisions identified by company pursuant to this section. In no event shall city be able to modify the franchise to include the different method of calculation of franchise fee found in the franchise agreement with the other municipality without this franchise also being modified to include all of the other provisions identified by company pursuant to this section.
(3) 
City may not exercise the option provided in this section if any of the provisions that would be included in this franchise are, in company's sole opinion, inconsistent with or in any manner contrary to any then-current rule, regulation, ordinance, law, code, or city charter. In the event of a regulatory disallowance of the increase in franchise fees paid pursuant to city's exercise of its option pursuant to this section, then at any time after the regulatory authority's entry of an order disallowing recovery of the additional franchise fee expense in rates, company shall have the right to cancel the modification of the franchise made pursuant to this section, and the terms of the franchise shall immediately revert to those in place prior to city's exercise of its option under this subsection.
(4) 
Notwithstanding any other provision of this franchise, should the city exercise the option provided in this section, and then adopt any rule, regulation, ordinance, law, Code, or Charter that, in company's sole opinion, is inconsistent with or in any manner contrary to the provisions included in this franchise pursuant to this section, then company shall have the right to cancel all of the modifications to this franchise made pursuant to this section and, effective as of the date of the city's adoption of the inconsistent provision, the terms of the franchise shall revert to those in place prior to the city's exercise of its option under this section. The provisions of this section apply only to the amount of the franchise fee to be paid and do not apply to other franchise fee payment provisions, such as the timing of such payments. The provisions of this section do not apply to differences in the franchise fee factor that result from the application of the methodology set out in PURA section 33.008(b) or any successor methodology.
(Ordinance 2025-12 adopted 3/11/2025)
(a) 
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.
(1) 
The failure of company to pay the franchise fee on or before any of the due dates specified herein.
(2) 
Company's breach or violation of any material terms, covenants, representations, or warranties contained herein.
(b) 
Uncured events of default.
(1) 
Upon the occurrence of an event of default which can be cured by the immediate payment of money to the city, company shall have 30 calendar days from receipt of 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 this franchise.
(2) 
Upon the occurrence of an event of default by company which cannot be cured by the immediate payment of money to city, company shall have 60 calendar days (or such additional time as may be agreed to by the city) from receipt of 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 this franchise.
(3) 
If the 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 in section 4-20-68(c).
(c) 
The city shall notify the company in writing of an alleged Uncured event of default as described in section 4-20-68(b), which notice shall specify the alleged failure with reasonable particularity. The company shall, within 30 days after receipt of such notice or such longer period of time as the city may specify in such notice, either cure such alleged failure or in a written response to the city present facts and arguments in refuting or defending such alleged failure or state that such alleged failure will be cured and set forth the method and time schedule for accomplishing such cure. In the event that such cure is not forthcoming, the city may declare this an uncured event of default, which shall entitle the city to exercise the remedies provided in section 4-20-68(c) of this franchise.
(d) 
Remedies for uncured event of default.
If there is an uncured event of default as described above, city shall be entitled to exercise any and all cumulative remedies as allowed by law, regardless of whether not company has refuted the alleged failure, including but not limited to:
(1) 
The commencement of an action against company at law for monetary damages.
(2) 
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.
(3) 
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.
(4) 
The termination of this franchise in accordance with the provisions of section 4-20-70.
(Ordinance 2025-12 adopted 3/11/2025)
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 failure to cure. However, city shall not recover both liquidated damages and actual damages for the same violation, breach, or event of noncompliance.
(Ordinance 2025-12 adopted 3/11/2025)
This franchise may be terminated in accordance with the provisions of section 4-20-68(c), upon 30 business days' prior written notice to company by city. City shall notify company in writing at least 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. This franchise will not be terminated if company commences work or other efforts to cure such violations and completes such curative work according to a plan and timeline mutually agreed upon by company and city. The final decision of the city council terminating the franchise 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 the date upon which such appeal is withdrawn or the date upon which an order or judgment, entered by a court of competent jurisdiction and 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 of Texas in accordance with the Texas Utilities Code. The failure of either party to insist in any one or more instances upon the strict performance of any one or more of the terms or provisions of this franchise shall not be construed as a waiver or relinquishment for the future of any such term or provision, and the same shall continue in full force and effect, subject to applicable statute of limitations. No waiver or relinquishment shall be deemed to have been made by either party unless said waiver or relinquishment is in writing and signed by that party.
(Ordinance 2025-12 adopted 3/11/2025)
This division shall become effective upon company's written acceptance hereof, said written acceptance to be filed by company with the city within 60 days after final passage and approval hereof by city. The right, privilege and franchise granted hereby shall expire on March 31, 2045; provided that, unless written notice of cancelation is given by either party hereto to the other not less than 60 days before the expiration of this franchise agreement, it shall be automatically renewed for an additional period of six months from such expiration date and shall be automatically renewed thereafter for like periods until canceled by written notice given not less than 60 days before the expiration of any such renewal period.
(Ordinance 2025-12 adopted 3/11/2025)
This division shall supersede any and all other franchises granted by the city to company, its predecessors, and assigns.
(Ordinance 2025-12 adopted 3/11/2025)
In order to accept this franchise, company must file with the city secretary its written acceptance of this franchise division within 60 days after its final passage and approval by city.
(Ordinance 2025-12 adopted 3/11/2025)