HomeMy WebLinkAboutOrdinance 3529 ORDINANCE NO. 3529
AN ORDINANCE GRANTING TO ONCOR ELECTRIC DELIVERY
COMPANY LLC, ITS SUCCESSORS AND ASSIGNS, AN ELECTRIC
POWER FRANCHISE TO USE THE PRESENT AND FUTURE
STREETS, ALLEYS, HIGHWAYS, PUBLIC UTILITY EASEMENTS,
PUBLIC WAYS AND PUBLIC PROPERTY OF THE CITY OF NORTH
RICHLAND HILLS, TEXAS, PROVIDING FOR COMPENSATION
THEREFOR, PROVIDING FOR AN EFFECTIVE DATE AND A TERM
OF SAID FRANCHISE, PROVIDING FOR WRITTEN ACCEPTANCE
OF THIS FRANCHISE, PROVIDING FOR THE REPEAL OF ALL
EXISTING FRANCHISE ORDINANCES TO ONCOR ELECTRIC
DELIVERY COMPANY LLC, ITS PREDECESSORS AND ASSIGNS,
AND FINDING THAT THE MEETING AT WHICH THIS ORDINANCE
IS PASSED IS OPEN TO THE PUBLIC.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF NORTH RICHLAND
HILLS, TEXAS:
SECTION 1. GRANT OF AUTHORITY: That 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, public utility
easements, public ways and other public property (Public Rights-of-Way) of the City of
North Richland Hills, 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 7.
SECTION 2. Poles, towers and other structures shall be so erected as not to
unreasonably interfere with traffic over streets, alleys and highways.
SECTION 3. The City reserves the right to lay, and permit to be laid, storm, sewer,
gas, water, wastewater and other pipe lines, cables, and conduits, or other improvements
and to do and permit to be done any underground or overhead work that may be
Oncor Electric Delivery Company LLC/City of North Richland Hills Electric Franchise
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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, storm sewers, drainage basins, drainage
ditches, and the like. City shall provide Company with at least thirty(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. 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.
If any other corporation or person (other than City) requests Company to relocate
Company facilities located in City Rights-of-Ways, 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.
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
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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 Rights-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.
SECTION 4.
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 system 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 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 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
Oncor Electric Delivery Company LLC/City of North Richland Hills Electric Franchise
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waiving any of the defenses of the parties under Texas 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 (7) 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.B and 4.C.
SECTION 5. 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.
SECTION 6. 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:
A. As authorized by Section 33.008(b) of PURA, the original franchise fee factor
calculated for the City in 2002 was 0.002837 (the "Base Factor"), multiplied by
each kilowatt hour of electricity delivered by Company to each retail customer
Oncor Electric Delivery Company LLC/City of North Richland Hills Electric Franchise
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whose consuming facility's point of delivery is located within the City's municipal
boundaries for determining franchise payments going forward.
Due to a 2006 agreement between Company and City the franchise fee factor was
increased to a franchise fee factor of 0.002979 (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 an annual basis.
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 0.002837 and all future payments, irrespective of the time period that is
covered by the payment, will be made using the Base Factor.
1. The annual payment will be due and payable on or before March 15 of each
year throughout the life of this franchise. The payment will be based on 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 during the preceding twelve month period ended December 31
(January 1 through December 31). The payment will be for the rights and
privileges granted hereunder for the twelve calendar month period (January 1
through December 31) the year in which the payment is made.
2. The first payment hereunder shall be due and payable on or before March 15,
2019 and will cover the basis period of January 1, 2018 through December 31,
2018 for the privilege period of January 1, 2019 through December 31, 2019.
The final payment under this franchise is due on or before March 15, 2038 and
covers the basis period of January 1, 2037 through December 31, 2037 for the
privilege period of January 1, 2038 through December 31, 2038; and
3. After the final payment date of March 15, 2038, Company may continue to
make additional annual payments in accordance with the above schedule. City
Oncor Electric Delivery Company LLC/City of North Richland Hills Electric Franchise
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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 annual periods.
B. A sum equal to four percent (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.
1. 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.
2. 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 6B,
received during the preceding calendar year. The initial Discretionary Service
Charge franchise fee amount will be paid on or before April, 30 2019 and will
be based on the calendar year January 1, 2018 through December 31, 2018.
The final Discretionary Service Charge franchise fee amount will be paid on or
before April 30, 2039 and will be based on the calendar year of January 1, 2038
through December 31, 2038.
3. Company may file a tariff or tariff amendment(s) to provide for the recovery of
the franchise fee on Discretionary Service Charges.
4. 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
Oncor Electric Delivery Company LLC/City of North Richland Hills Electric Franchise
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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.
5. 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.
6. 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.
SECTION 7. This Ordinance shall become effective upon Company's written
acceptance hereof by City, said written acceptance to be filed by Company with the City
within sixty (60) days after final passage and approval hereof. The right, privilege and
franchise granted hereby shall expire on December 31, 2038; provided that, unless
written notice of cancelation is given by either party hereto to the other not less than sixty
(60) days before the expiration of this franchise agreement, it shall be automatically
renewed for an additional period of six (6) months from such expiration date and shall be
automatically renewed thereafter for like periods until canceled by written notice given not
less than sixty (60) days before the expiration of any such renewal period.
SECTION 8. This Ordinance shall supersede any and all other franchises granted
by the City to Company, its predecessors and assigns.
SECTION 9. The sections, paragraphs, sentences, clauses and phrases of this
Ordinance are severable. If any portion of this Ordinance is declared illegal or
unconstitutional by the valid final non-appealable judgment or decree of any court of
competent jurisdiction, such illegality or unconstitutionality shall not affect the legality and
enforceability of any of the remaining portions of this Ordinance.
SECTION 10. In order to accept this franchise, Company must file with the City
Secretary its written acceptance of this franchise ordinance within sixty (60) days after its
Oncor Electric Delivery Company LLC/City of North Richland Hills Electric Franchise
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final passage and approval by City.
SECTION 11. It is hereby officially found that the meeting at which this Ordinance
is passed is open to the public and that due notice of this meeting was posted by City, all
as required by law.
PASSED AND APPROVED on the 1st reading at a regular meeting of the City Council of
North Richland Hills, Texas, on this the 27th day of August, 2018.
PASSED AND APPROVED on the 2nd and final at a regular meeting of the City Council
of North Richland Hills, Texas, on this thelOth day of September, 2018.
THE ITY o F •R H RICHLAND HILLS
I
Oscar Trevino, Mayor
ATTEST: X11 toira��jJunil:rrii
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Alicia Richardson, pity S reta y,,;,
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APPROVED AS TO FORM D LEGALITY:
L
Maleshia B. McGinnis, City Attorney i APPR V•D AS TO CONTENT:
r
Karen Bostic, Assistant City Manager
STATE OF TEXAS §
COUNTY OF TARRANT §
CITY OF NORTH RICHLAND HILLS §
Oncor Electric Delivery Company LLC/City of North Richland Hills Electric Franchise
Page 8 of 8
C" Secretary Omce
STATE OF TEXAS § official Record Copy
§ Ex As
CITY OF NORTH RICHLAND HILLS §
WHEREAS, there was finally passed and approved on September 10, 2018
Ordinance No. 3529 granting to Oncor Electric Delivery Company LLC, its
successors and assigns, a franchise to furnish and deliver electricity to the
general public in the City of North Richland Hills, Tarrant County, Texas, for the
transporting, delivery and distribution of electricity in, out of and through said
municipality for all purposes, which is recorded in the Minutes of the City Council
of said City; and
WHEREAS, Section 10 of said ordinance provides as follows:
"SECTION 10.
In order to accept this franchise, Company must file with the City Secretary
its written acceptance of this franchise ordinance within sixty (60) days
after its final passage and approval by City."
AND, WHEREAS, it is the desire of Oncor Electric Delivery Company LLC,
the holder of the rights, privileges and grants under the aforesaid franchise
ordinance, to comply with the above-quoted provisions of Section 10 thereof.
NOW, THEREFORE, premises considered, Oncor Electric Delivery
Company LLC, acting by and through its duly authorized officers, and within the
time prescribed by Section 10 quoted above, does hereby agree to and accept the
franchise granted to it by the above-described ordinance, in accordance with its
terms, provisions, conditions and requirements and subject to the stipulations
and agreements therein contained.
WITNESS THE EXECUTION HEREOF, on this the 2�i day of
, 2018.
_4644 Oncor Electric Delivery Company LLC
Matth: C. Henry
Sr. Vice President & G neral Counsel
q1
1, City Secretary Office
Official Record Copy
rE x as
STATE OF TEXAS §
COUNTY OF TARRANT §
CITY OF NORTH RICHLAND HILLS §
1, i , • • -r) ; r 'f City Secretary of the City of North
Richland Hills, Texas, do hereby certify that the attached Acceptance executed by
Oncor Electric Delivery Company LLC is a true and correct copy of a formal
acceptance of a franchise ordinance finally passed and approved by said City on
September 10, 2018, and of record in the Minutes of the City;
OF WHICH, witness my official signature and the seal of said City on this
��
the d 7.6 day of (f e ?b.ey , 2018.
f 5i$-1and-City Secretary
44°T , City of North Richland Hills,
,, , Texas
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