Ordinance 2020-39ORDINANCE NO. 2020-39
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF WYLIE,
TEXAS, GRANTING TO ONCOR ELECTRIC DELIVERY COMPANY
LLC, ITS SUCCESSORS AND ASSIGNS, A NON-EXCLUSIVE ELECTRIC
POWER FRANCHISE TO USE THE PRESENT AND FUTURE STREETS,
ALLEYS, HIGHWAYS, PUBLIC UTILITY EASEMENTS, PUBLIC WAYS
AND PUBLIC PROPERTY OF THE CITY OF WYLIE, 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 WYLIE, TEXAS:
SECTION 1. GRANT OF AUTHORITY.
A. That there is hereby granted to Oncor Electric Delivery Company LLC, its successors and
assigns (herein called "Company"), the non-exclusive 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
(herein called "Public Rights -of -Way") of the City of Wylie, 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; provided, however, that
nothing herein shall be construed to require or authorize Company to exceed its certification
rights granted by the Public Utility Commission of Texas.
B. Company shall not install, construct or extend any Facilities in parks or other City -owned
property other than public utility easements, streets, alleys or highways without first obtaining
written approval from City.
SECTION 2. USE OF PUBLIC RIGHTS -OF -WAY:
A. Poles, towers and other structures shall be so erected as not to unreasonably interfere with 1)
traffic over streets, alleys, highways and other Public Rights -of -Way; 2) existing gas, electric,
or telephone facilities; or 3) existing water facilities, drainage facilities, sanitary sewer
facilities, traffic control facilities, street lights, fire lanes or communications lines.
B. Company shall, except in cases of (i) emergency conditions or (ii) routine maintenance and
repair of facilities that do not involve any of the following (a) cutting or breaking of pavement
or (b) closure of traffic lane for longer than 24 hours or (c) boring or (d) excavation greater
than 100 cubic feet or (iii) connection of real property to a utility service on the same side of
the Public Rights -of -Way if connection does not require a pavement cut in the Public Rights -
of -Way or (iv) replacement of a single damaged pole and associated work within a ten (10)
Ordinance No. 2020-39
Oncor Electric Delivery Company LLC/City of Wylie Electric Franchise
foot radius of the damaged pole or (v) installation of aerial lines on less than 11 existing poles
or installation of aerial lines on less than 11 new poles, provide the City reasonable advance
notice, and 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 and maintain its facilities in conformance
with the applicable provisions of the National Electrical Safety Code or such comparable
standards as may be adopted, and in a good and workmanlike manner.
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 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
bona fide 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 a bona fide emergency,
Company shall provide notice to the City Engineer of any excavation in the paved portion of any
street as soon as reasonably practicable. Company shall construct its Facilities in conformance
with the applicable provisions of the National Electrical Safety Code, as it exists or may be
amended. 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 pursuant to City Council action, the City abandons any Public Right -of -Way in which Company
has Facilities, City shall determine whether it is appropriate to retain a public utility easement in
such Public Right -of -Way for use by Company. If City determines, in its sole discretion, that the
continued use of the Public Right -of -Way by Company is compatible with the abandonment of the
Public Right -of -Way, then in consideration of the compensation set forth in Section 6, and to the
Ordinance No. 2020-39
Oncor Electric Delivery Company LLC/City of Wylie Electric Franchise
maximum extent of its right to do so, City shall grant Company an easement for such use, and the
abandonment of the Public Right -of -Way shall be subject to the right and continued use of
Company. 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,
defend, 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 or loss of 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 use, construction, maintenance and operation of
Company's system in the City Public Rights -of -Way, including any court costs, reasonable
expenses, including attorney fees, 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 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
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Oncor Electric Delivery Company LLC/City of Wylie Electric Franchise
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, impact fees
under the City's impact fee ordinance (however this impact fees exclusion does not apply to
Oncor's construction of Facilities in City's Public Rights -of -Way), and special assessments for
public improvements, Company shall pay to the City the following:
A. A final annual payment was made on or before June 30, 2020 for the basis period of April
1, 2019 through March 31, 2020 and the privilege period of July 1, 2019 through June 30,
2020 in accordance with the provisions in the previous franchise.
B. As authorized by Section 33.008(b) of PURA, the original franchise fee factor calculated
for the City in 2002 was 0.002658 (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.
Due to a 2006 agreement between Company and City the franchise fee factor was increased
to a franchise fee factor of 0.002791 (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.
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 0.002658 and all future payments,
irrespective of the time period that is covered by the payment, will be made using the Base
Factor.
Company shall make quarterly payments as follows:
Payment Due Date Basis Period
Privilege Period
September 30 Apr. 1 - Jun. 30 Jul. 1 - Sept. 30
December 31 Jul.1 - Sept. 30 Oct.1 - Dec. 31
March 31 Oct. 1 - Dec. 31 Jan. 1 — Mar. 31
June 30 Jan. 1 - Mar. 31 Apr. 1 - Jun. 30
1. The first quarterly payment hereunder shall be due and payable on or before September
30, 2020 and will cover the basis period of April 1, 2020 through June 30, 2020 for the
privilege period of July 1, 2020 through September 30, 2020. If this franchise is not
Ordinance No. 2020-39
Oncor Electric Delivery Company LLC/City of Wylie Electric Franchise
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 30, 2040 and covers the basis period of January 1,
2040 through March 31, 2040 for the privilege period of April 1, 2040 through June
30, 2040; and
2. After the final payment date of June 30, 2040, 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.
C. 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 6C, received during the
preceding calendar year. The initial Discretionary Service Charge franchise fee amount
will be paid on or before April 30, 2021 and will be based on the calendar year January
1, 2020 through December 31, 2020. The final Discretionary Service Charge franchise
fee amount will be paid on or before April 30, 2041 and will be based on the calendar
months of January 1, 2040 through June 30, 2040.
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 is an issue, the City will take an affiuuiative
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.
D. With each payment of compensation required in Section 6.B., Company shall furnish to
the City a statement that provides the franchise basis period, the total amount of kilowatt
Ordinance No. 2020-39
Oncor Electric Delivery Company LLC/City of Wylie Electric Franchise
hours of electricity delivered during the franchise basis period by Company to retail
customers whose consuming facility's point of delivery is located within the City's
municipal boundaries, and the privilege period covered by that payment. The statement
will be executed by an authorized officer of Company or designee, who shall certify that
the statement is true and correct to the best of his or her knowledge.
E With each payment of compensation required in Section 6.C, Company shall furnish to the
City a statement reflecting the total amount of gross revenues received by Company within
the City's municipal boundaries for services identified in its "Tariff of Retail Delivery
Service" as described in Section 6.C. The statement will be executed by an authorized
officer of Company or designee, who shall certify that the statement is true and correct to
the best of his or her knowledge.
F If either party discovers that Company has failed to pay the entire or correct amount of
compensation due, the correct amount shall be determined by mutual written agreement
between the City and Company and the City shall be paid by Company within thirty (30)
calendar 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 thirty (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.
G. Interest on late payments or reimbursement for overpayment 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.
SECTION 7. This Ordinance shall become effective upon Company's written acceptance hereof,
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
June 30, 2040.
SECTION 8. DEFAULT, REMEDIES, AND TERMINATION.
A. Events of Default. The occurrence, at any time during the term of the Franchise
Agreement, 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 payments required in Section 6 on or before the due
dates specified herein.
2. Company's material breach or material 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 City, Company shall have thirty (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 for in Section 8.C.
Ordinance No. 2020-39
Oncor Electric Delivery Company LLC/City of Wylie Electric 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 forty-five (45) 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 Section 8.C.
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 for in Section 8.C.
C. Remedies. The City shall notify the Company in writing of an alleged Uncured Event of
Default as described in Section 8.B, which notice shall specify the alleged failure with
reasonable particularity. The Company shall, within thirty (30) business 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 either 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, City shall be entitled to exercise any and all of the
following cumulative remedies:
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 termination of this Franchise.
D. The rights and remedies of City and Company set forth in this Franchise Agreement 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, notwithstanding this Section or
any other provision of this Franchise, City shall not recover both liquidated damages and
actual damages for the same violation, breach, or noncompliance, either under this Section
or under any other provision of this Franchise.
E. Termination. In accordance with the provisions of Section 8.C, this Franchise may be
terminated upon thirty (30) business day's prior written notice to Company by City. City
shall notify Company in writing at least fifteen (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. The final decision of the City Council 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 either when such appeal is withdrawn or an order 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
Ordinance No. 2020-39
Oncor Electric Delivery Company LLC/City of Wylie Electric Franchise
Texas Utilities Code.
F. 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. 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.
SECTION 9. ASSIGNMENT. The rights granted by this Franchise Agreement inure to the
benefit of the Company and any parent, subsidiary, affiliate or successor entity now or hereafter
existing. The rights shall not be assignable without the express written consent, by Ordinance, of
the City Council of the City, unless otherwise superseded by state laws, rules, or regulations or
Public Utility Commission of Texas action, and such consent by City shall not be unreasonably
withheld or delayed, except Company may assign its rights under this Franchise Agreement to a
parent, subsidiary, affiliate or successor entity without consent, so long as such parent, subsidiary,
affiliate or successor entity assumes all obligations of Company hereunder, and is bound to the
same extent as Company hereunder. Company shall give the City written notice within ninety (90)
days of any such assignment to a parent, subsidiary, affiliate or successor entity.
SECTION 10. This Ordinance shall supersede any and all other franchises granted by the City to
Company, its predecessors and assigns.
SECTION 11. 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 12. 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.
SECTION 13. 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.
SECTION 14. The parties' rights and obligations in this Franchise shall be governed by all
applicable laws, rules and regulations. City and Company agree that any lawsuit between the City
and Company concerning this Ordinance will be filed in the State of Texas. Nothing in the
Ordinance shall prohibit the City from filing an action related to this Ordinance in Collin County,
Texas.
SECTION 15. The parties agree that City has not waived its governmental or sovereign immunity
by entering into and performing its obligations under this franchise.
SECTION 16. This franchise is for the benefit of Company and City, and not for the benefit of
any third party. No provision of this franchise shall be construed as creating any third -party
Ordinance No. 2020-39
Oncor Electric Delivery Company LLC/City of Wylie Electric Franchise
beneficiaries.
SECTION 17. This franchise contains the entire understanding between the parties with respect
to the subject matter herein. There are no representations, agreements, or understandings (whether
oral or written) between or among the parties relating to the subject matter of this franchise that
are not fully expressed herein.
SECTION 18. Each of the parties to this franchise represent and warrant that at the time of signing
of this franchise it has the full right, power, legal capacity, and authority to enter into and perform
the parties' respective obligations hereunder and that such obligations shall be binding upon such
party. Each signatory represents this franchise has been read by the party for which this franchise
is executed and that such party has had an opportunity to confer with its counsel.
PASSED AND APPROVED at a regular meeting of the City Council of Wylie, Texas, on
this the 14th day of July, 2020.
Eric Hogue, M
The City of Wylie,.
ATTEST:
Stephanie Storm, City Secretary
Ordinance No. 2020-39
Oncor Electric Delivery Company LLC/City of Wylie Electric Franchise