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HomeMy WebLinkAboutOrdinance 11364~' w a. . ORDINANCE NO. / AN ORDINANCE-GRANTING TO TEXAS UTILITIES ELECTRIC COMPANY A FRANCHISE FOR THE PURPOSE OF USING THE STREETS AND PUBLIC WAYS OF THE CITY OF FORT WORTH, TEXAS, IN CONNECTION WITH ITS ELECTRIC UTILITY SYSTEM; PRESCRIBING THE CONSIDERATION THEREFOR; PROVIDING FOR PUBLICATION; PROVIDING AN EFFECTIVE DATE; PROVIDING A TERM; PROVIDING FOR ACCEPTANCE BY TEXAS UTILITIES ELECTRIC COMPANY; AND FINDING AND DETERMINING THAT THE MEETING AT WHICH THIS ORDINANCE IS PASSED IS OPEN TO THE PUBLIC AS REQUIRED BY LAW. WHEREAS, Texas Utilities Electric Company, hereinafter called "TU Electric," and its predecessors have, for many years, operated an electric utility system, including poles, wires, transformers, meters and other appurtenances within the City of Fort Worth, Texas, hereinafter called "City," under a franchise heretofore granted by the City, the said existing franchise being that certain contract dated August 21, 1972 (City Secretary Contract No. 7230), and amended by certain agreements dated June 22, 1992 (City Secretary Contract No. 19240), October 15, 1992 (City Secretary Contract No. 19395), January 19, 1993 (City Secretary Contract No. 19726), and April 13, 1993 (City Secretary Contract No. 19727), which the City and TU Electric have mutually agreed to terminate effective June 30, 1993; and WHEREAS, it is the desire of the City and TU Electric to enter into a new franchise providing a new and different consideration for the use by TU Electric of the City's streets and public ways for the purpose of TU Electric's electric utility system; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FORT WORTH, TEXAS: C ti C SECTION 1. There is hereby granted to TU Electric the right, privilege and franchise to construct, extend, maintain, use and operate in, along, under, on, over, through, above and across the present and future public streets, alleys, highways, easements, parks and other public places within the City an electric utility system, consisting of such poles, lines, wires, towers, anchors, cables, manholes, conduit, and other structures and appurtenances as may be necessary or convenient for such an electric utility system. SECTION 2. As compensation for the right, privilege and franchise herein granted, TU Electric shall pay to the City a sum of money equal to four percent (4$) of TU Electric's gross receipts from the rendition of electric light, heat, power, and other services within the City, but not to include the gross receipts from the sale of electric power and energy to other electric utilities for resale, said compensation being payable on a quarterly basis. The first payment hereunder shall be due and payable on or before July 31, 1993, and shall be based upon TU Electric's said gross receipts during the calendar quarter ended June 30, 1993, and shall be payment for the right, privilege and franchise herein granted during the calendar quarter ended September 30, 1993. Subsequent payments hereunder shall be due and payable on or before the last day of the first month following the end of the calendar quarter upon which said payment is based and shall be payment for the right, privilege and franchise herein granted during the calendar -2- quarter in which the payment is due and payable, that is, the quarterly payments shall be as follows: Payment Due Date October 31 January 31 April 30 July 31 Quarter Upon Which Payment is Based July 1 - September 30 October 1 - December 31 January 1 - March 31 April 1 - June 30 Quarter For Which Payment is Made October 1 - December 31 January 1 - March 31 April 1 - June 30 July 1 - September 30 All payments due hereunder shall be made by electronic funds transfer. Said payments shall be made by TU Electric and accepted by the City as full payment for the right, privilege and franchise of using and occupying the streets, alleys, highways, easements, parks and other public places within the City, and such other charges connected with such use as rentals, supervision and inspection, or occupation charges, and in lieu of and shall be accepted as payment for all of TU Electric's obligations to pay municipal charges, fees, rentals, wire taxes, inspection fees, easement taxes, franchise taxes, certain regulatory expenses (as hereinafter provided) under Section 24 of the Public Utility Regulatory Act or any similar or successor law, or other charges and taxes of every kind, except 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, special assessments for public .improvements, and portions of certain expenses incurred by the City in general rate cases initiated by TU Electric as hereinafter provided. On or before the date upon which -3- each of the said quarterly payments is due and payable, a report shall be filed with the City by TU Electric showing its said gross receipts during the calendar quarter upon which such quarterly payment is based. Except as otherwise provided in Sections 3, 4 and 5 hereof, the City and TU Electric hereby agree that the payments made under Section 2 hereof shall be made by TU Electric and received by the City in lieu of and as full payment for any obligation which TU Electric has to reimburse the City for expenses incurred by the City in ratemaking or regulatory proceedings involving TU Electric, whether initiated by the City, by TU Electric, or otherwise. SECTION 3. Notwithstanding anything to the contrary in Section 2 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 a 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. Such reimbursement of the City by TU Electric shall commence after the City incurs cumulative expenses in excess of $4 million in general rate cases and shall be made at the times and in the manner provided in Section 24 of the Public Utility Regulatory Act or a similar or successor law. The term "general rate case" as used in this Ordinance means a rate case initiated by TU Electric in which it seeks to increase its rates charged to a -4- substantial number of its customer classes in th'e City and elsewhere in its system and in which TU Electric's overall revenues are determined in setting such rates and includes any appeals and judicial review of orders regarding such rate cases. City agrees to exercise reasonable best efforts, considering the facts and circumstances, to keep its expenses on average to under $1,000,000 per general rate case. SECTION 4. Notwithstanding the provisions of Section 3 hereof, in the event that the largest city, by population, served by TU Electric incurs cumulative expenses in connection with general rate cases filed by TU Electric during the next fifteen (15) years in excess of $4 million and TU Electric reimburses said city such excess, then, in that event, TU Electric will reimburse the City of Fort Worth its reasonable expenses actually incurred that are otherwise reimbursable under Section 24 of the Public Utility Regulatory Act, Article 1446 c, V.A.T.S. (the "PURR") or a similar or successor law, in an amount calculated in accordance with the following formula: A = [(B - $4,000,000)- B] x C where: A = The amount reimbursable to the City of Fort Worth under this franchise. B = The total amount of expenses incurred by the largest city, by population, served by TU Electric during the next 15 years in connection with general rate cases filed by TU Electric, which expenses would be reimbursable under Section 24 of the -5- T• PURA or a similar or successor law except for the terms of said city's franchise, but excluding all such expenses incurred in connection with Public Utility Commission of Texas Dockets Nos. 9300 and 11735; and C = The total amount of expenses incurred by the City of Fort Worth, during next 15 years, in connection with general rate cases filed by TU Electric, which expenses would be reimbursable under Section 24 of the PURR or a similar or successor law except for the terms of this franchise, but excluding all such expenses incurred in connection with Public Utility Commission of Texas Dockets Nos. 9300 and 11735. Such reimbursement of the City by TU Electric shall commence after the largest city, by population, served by TU Electric incurs cumulative expenses in excess of $4 million in general rate cases and shall be made at the times and in the manner provided in Section 24 of the Public Utility Regulatory Act or a similar or successor law. The provisions of Section 4 hereof shall apply until the City of Fort worth incurs cumulative expenses in excess of $4 million in general rate cases and the provisions of Section 3 hereof shall then apply. SECTION 5. Notwithstanding the provisions of Sections 2, 3 and 4 hereof, TU Electric will continue to reimburse the City's 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 expenses, if any, in connection -6- 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 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 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 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). Any reimbursement of the City by TU Electric under Section 5 hereof shall be made at the times and in the manner provided in Section 24 of the Public Utility Regulatory Act or a similar or successor law. The City and TU Electric hereby further _7_ agree that any expenses incurred by the City in connection with Docket No. 11735 on appeal of the last action by the Public Utility Commission (i.e. the Commission's final order overruling the last motion for rehearing) will not be considered expenses that were incurred by the City in a general rate case for purposes of determining the City's eligibility for reimbursement from TU Electric under the provisions of Sections 2, 3, 4 or 5 hereof. SECTION 6. The City Council declares and TU Electric agrees that the sections, paragraphs, sentences, clauses and phrases of this ordinance are severable, and, if any section, paragraph, sentence, clause or phrase of this ordinance shall be declared invalid by the final and valid judgment of a court of competent jurisdiction, such invalidity shall not affect any of the remaining sections, paragraphs, sentences, clauses or phrases of this ordinance, since the same would have been enacted by the City Council without such invalid section, paragraph, sentence, clause or phrase. The City Council further declares and TU Electric agrees that if any of the provisions in Sections 2, 3, 4 or 5 hereof concerning TU Electric's reimbursement of certain ratemaking expenses of the City are held unconstitutional, void or unenforceable for any reason by a court of competent jurisdiction, then, in that event, the reimbursement of the City's ratemaking expenses shall continue to be made as provided in Section 24 of the Public Utility Regulatory Act or a similar or successor law, and such unconstitutionality, voidness or unenforceability shall not affect the validity of any other -8- provisions of this ordinance nor the amount of the franchise fees ,. which TU Electric is required to pay the City hereunder. SECTION 7. TU Electric agrees to make available for audit by the City TU Electric's records reflecting amounts of its gross receipts from the rendition of e]ectric light, heat, power, and other services, within the City, but not to include the gross receipts from the sale of electric power and energy to other electric utilities for resale, the basis for TU Electric's franchise payments to the City, and the basis for TU Electric's franchise payments to other municipalities. The City's right to audit TU Electric under the provisions of Section 7 hereof shall be in addition to the City's rights to audit TU Electric under provisions of the Public Utility a Regulatory Act and the City Charter and Section 7 hereof shall not be deemed to limit those additional audit rights. SECTION 8. A. TU Electric agrees to set goals for contracts to be entered with qualified Fort Worth minorities, women and other residents to provide goods, equipment and services to TU Electric. B. TU Electric agrees to set goals for supervisory and mid- management jobs to be made available by TU Electric to qualified Fort Worth minorities, women and residents. To this end, TU Electric agrees to faithfully adhere to all applicable federal, state and city rules and regulations pertaining to non- discrimination, equal employment and affirmative action. { -9- C. During the term hereof, TU Electric agrees to share information developed in paragraphs A and B above upon request of the City of Fort Worth. SECTION 9. The City Secretary of the City of Fort Worth is hereby directed to publish this Ordinance in its entirety once a week for four (4) consecutive weeks within a period of thirty (30) days after its passage in the official newspaper of the City, as required by Section 2 of Chapter XXV of the City Charter of the City of Fort Worth, Texas. SECTION 10. This franchise shall commence on July 1, 1993, and shall continue for a period of fifteen (15) years from and after July 1, 1993; provided that, unless written notice 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 ten (10) years 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 11. TU Electric shall, within fifteen (15) days from the passage of this ordinance, file its written acceptance of this ordinance with the Office of the City Secretary in substantially the following form: -10- ~ t . 4` 9 To the Honorable Mayor and City Council: Texas Utilities Electric Company (TU Electric), acting by and through the undersigned authorized officer, hereby accepts, on this ~_ day of 1993, Ordinance No. f~~- granting a franchise o TU Electric. TEXAS UTILITIES ELECTRIC COMPANY By: Senior Vice President SECTION 12. It is hereby officially found and determined that the meeting at which this Ordinance is passed is open to the public as required by law and that public notice of the time, place and purpose of said meeting was given as required. ADOPTED by the City Council of the City of Fort Worth, Texas, this ~~ *'day of ~ ~-~~ , 1993. ~r ~ ` ~~ ~'R. ~F w w 4 '~ ,~ AT EST: ~. ~` *~ r .~: .~ =t ~: ~~t ~~ ~. ~~~~ - U, ~r'~~fAPPROVE;D\ AS TO FORM AND LEGALITY: City Attorney Date : 1 - 7` ~ - q 3 ADOPTED: ~ ') ~/ ~' ~~ EFFECTIVE: ~ -11- MASTER Ftl.£ 1 A~2COUNTlNG 2 'r 'JRANSPORTATIONfPUBLtC.WORKS+9 City of Fort Worth, Texas Ma7{:R A`J MINIS7RATi6N d E N G I N E mayor an~~d Cour~!cil Communicati~~n ~,.~.~ 07/23/93 G-10263 1211~LEC I 1 of 2 ~ ~.1~,T ~ ADOfTf ICN OF Ct~ I C~3~YVT' I f~G I~BIV FRPKt~ 1 SE TO TU_ ELECTRI C Q7~/PAM( J RECOMMENDATION: It is recommended that the City Council adopt the attached ordinance granting a new franchise to Texas Utilities Electric Company for a period of fifteen years. DISCUSSION Texas Utilities Electric Company (TU Electric Company) operates an electric distribution system in the City of Fort Worth under a previously granted franchise. The franchise provides for compensation to the City for TU Electric Company's use of the City's streets, alleys, highway, easements, parks and other public places. TU Electric Company currently pays the City a quarterly fee based on three percent of its gross revenues from the sale of electricity within the corporate limits of the City for the immediately preceding calendar quarter, but, payments are not due until seventy- five days after the end of each quarter. Payments are made on March 15, June 15, September 15 and December 15. TU Electric Company's current franchise expires on December 21, 1993 and the Company has requested that the City Council grant a new franchise. The attached Ordinance would grant the new franchise and contains the following provisions: 1. The franchise is for fifteen years. 2. TU Electric will increase the franchise fee paid to the City from 3$ to 4$ of its gross revenues from the retail sales of electricity in the City. 3. TU Electric will modify the schedule for payments so that the City receives payments within 30 days after the end of a calendar quarter and as compensation for the following calendar quarter. 4. During the term of the franchise, the City will be reimbursed by TU Electric for the City's expenses in general rate cases brought by TU Electric when the City's rate case expenses exceed $4 million. TU Electric will also reimburse the City in full for its rate case expenses in PUC Docket No. 9300 and for its rate case expenses through the final order of the PUC in Docket No. 11735. In addition, TU Electric will reimburse the City's rate case expenses at the same percentage that is reimbursed to the largest city served by TU Electric. This reimbursement formula will provide a cap on the City's rate case expenses. The City waives any other reimbursement for future rate case expenses. 5. TU Electric has agreed to set goals concerning contracting and employment opportunities for qualified Fort Worth minorities, women and other residents and upon request to make information available to the City concerning TU Electric's contracting and employment activities. =~ Printed on recycled paper City of Fort i~orth, Texas Mayor and Council Communicatiart DOTE 07/23/93 FiEFEF~CE MI~IB~i G -102 6 3 LCD (ENE 12Tt~LEC PPGE 2 of 2 ~,1~T ~F'T t CN OF CED I C~+NT I I~G I~BIV FF~N3-I I SE lU 71J ELECTRIC Da/PAIVt( 6. A severability clause has been included which provides that if any provision of the franchise is declared unconstitutional, illegal or unenforceable, the other provisions of the franchise shall remain in force. It is estimated that the proposed franchise will result in a minimum of $60 million in additional franchise fees to the City of Fort Worth during the fifteen-year term. FISCAL INFORMATION/CERTIFICATION: The attached franchise ordinance does not require the expenditure of any City funds. CB:j m-tt or ity er a Office by: (m) ~:~~~~~~~ ~ ~ ~ ~~ ~ ° ~~ ~ ~ Charles Boswell 8500 `~ '~ ' '~ '~-~ Originating Department Head: ~~ ~ ~~ t~ f i s ~ ,. _ . Wade Adkins 7623 (from) ~ ,,, For Add~tioaal Information C_~;• W.Y t° ~~* ~+ti:e1`YYi, sexes Contact: ,t ~ ~ ~ ~ '~ Wade Adkins 7623 E~1~.CtG~ Qo . Ct P,tSC~3i~'t =~~ Printed on recycled paper