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05-D TXU Settlement Agreement AGENDA INFORMATION SHEET PROJECT: A Resolution approving and ratifying a Settlement Agreement between the Steering Committee of Cities served by TXU (including Paris) and TXU Electric Delivery. BACKGROUND: The City of Paris is and has been for some time a member ofa 110 member city coalition known as the Steering Committee of Cities Served by TXU. The Committee has been in existence since the late 1980s. It took on a formal structure in the early 1990s when TXU Cities gave up their statutory right to rate case expense reimbursement in exchange for higher franchise fee payments. Empowered by city resolutions and funded by per capita assessments, the Steering Committee has been for approximately 17 years the primary public interest advocate before the Public Utility Commission, the Courts, and the Legislature on electric utility regulation matters dealing with TXU. After months of consideration in 2004, the Steering Committee recommended that TXU be forced into a full scale review of its historic cost of service, something that had not occurred in more than a decade. To facilitate the efforts of the Steering Committee, twenty (20) cities passed resolutions requiring TXU Electric Delivery to show cause why the non-bypassable transmission and distribution charges should not be reduced. The rate inquiry was justified by several factors. First, the PUC had thrown municipal accounts in with broader commercial services in the 2001 rate proceedings that led to the deregulated environment. In the case of Paris and most other cities, THIS LED TO APPLICATION OF UNFAIR DEMAND RATCHETS AND HIGHER CHARGES FOR WATER PUMPING. IT ALSO LED TO OUTRAGEOUS CHARGES FOR STREET LIGHTING. Second, TXU had filed earnings monitoring reports at the PUC that established the Company was over-earning. Third, the Company had recently gone through massive reorganization and the hypothetical cost structures the PUC had used to justify current rates in 2001 were no longer valid. Information was to have been filed by TXU with the 20 cities initiating the rate review in late November 2004. Assuming that the cities that reviewed that material would have passed ordinances reducing rates in the January-February time frame, appeals to the PUC would have been triggered that would have led to a statewide rate case in the summer of2005. A final order would have been expected in mid to late 2006. DESCRIPTION: The Steering Committee and TXU began settlement discussions last fall and before Thanksgiving sufficient progress had been made to justify delaying the required rate filing. A Settlement Agreement was signed on February 22, 2005. The Agreement postpones or abates the statewide rate proceeding for approximately 14 months. In exchange for abating its rate inquiry, the cities have been promised rate design changes to be proposed to the PUC that should significantly reduce future electric charges. The Agreement also includes certain lump sum payments by TXU to the Steering Committee. As soon as all original jurisdiction city members of the Steering Committee ratify the Settlement Agreement, TXU will pay $8.5 million to the Steering Committee. The Committee has decided to distribute funds back to members by: (1) providing an amount equivalent to 25% of the total street lighting revenues collected by TXU in 2004; (2) holding back $100,000; and (3) distributing the residual based upon per capita participation in the Committee. Since all prior assessments have been on a per capita basis, it was believed that this manner of distribution would be the fairest to all cities. Additional payments of $8 million are expected in 2006 and 2007. There is no one factor that tilted the Steering Committee toward accepting a Settlement with TXU. Instead, all of the following factors were influential: 1. Most residential customers remain on price to beat (PTB) rates. Cost of service rate reductions cannot be shared with PTB customers until after January 1, 2007. Neither a litigated outcome nor a settlement will benefit PTB customers before that date. 2. The settlement delays rather than terminates a rate review. TXU must file a statewide case on or before July 1, 2006. The settlement provides that the Company must cooperate with cities in the interim period before the rate filing by funding a cities' consultant to evaluate affiliate transactions of TXU. Additionally, the Company must provide up to $2 million of reimbursement of cities' future rate case expenses. Without the settlement, the Steering Committee would have to make assessments to raise a comparable amount of money. 3. Cities have been consistently treated unfairly in the cost allocation/rate design process associated with the transition from regulated to competitive industry. This is especially true with regard to street lighting and water pumping. The settlement guarantees that TXU will propose fixes to those tariff problems when it files its rate case. That is particularly significant since rate design issues typically do not receive adequate consideration in a rate case. The settlement provides specific relief to cities that would be difficult to obtain in a rate case. 4. TXU has agreed to provide the Steering Committee $8.5 million after approval of the Settlement Agreement is obtained from cities. A payment of $8 million will be paid in 2006 and a third payment in 2007 will be based on $8 million pro rata to the point of a final rate order from the Public Utility Commission. 5. CAPP has an extremely important legislative agenda and the potential benefit to residential citizens and the cities where they reside from the four bills drafted by CAPP exceed benefits expected from a rate case. It is better to postpone the rate case and concentrate current efforts on the Legislature. RECOMMENDED ACTION: Adoption of the Resolution ratifying the Settlement Agreement. IF THE SETTLEMENT IS APPROVED, THE CITY OF PARIS' ESTIMATED SHARE OF THE INITIAL SETTLEMENT PROCEEDS IS $64,197.72. DRAFT F:ALICEIRESWORK\CURRENT\ TXU Settlement Res 2005 March 9, 2005 RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PARIS, PARIS, TEXAS, ACCEPTING A SETTLEMENT AGREEMENT WITH TXU ELECTRIC DELIVERY AS RECOMMENDED BY THE STEERING COMMITTEE OF CITIES SERVED BY TXU; MAKING OTHER FINDINGS AND PROVISIONS RELA TED TO THE SUBJECT; AND DECLARING AN EFFECTIVE DATE. WHEREAS, the City of Paris, Texas, is a member of the Steering Committee of Cities served by TXU (Steering Committee); and, WHEREAS, the Steering Committee did encourage certain member cities to initiate show cause rate proceedings against TXU; and, WHEREAS, TXU Electric Delivery and the Steering Committee engaged in settlement discussions regarding abatement of any full-scale rate investigation and interim relief that may be available to Cities; and, WHEREAS, it remains impractical, if not impossible, to deliver rate relief to the vast majority of residential customers until the expiration of price to beat (PTB) on January 1, 2007; and, WHEREAS, the unfair and adverse impacts of street lighting and water pumping tariffs that Cities have experienced since the implementation of retail deregulation on January 1, 2002, can be addressed on an interim basis pending a final order in a future rate case through a financial distribution from the Steering Committee of funds received from TXU Electric Delivery as part of a Settlement; and WHEREAS, such interim relief is coupled with the Steering Committee's recognition that resources should be devoted to the 2005 Legislative Session to promote overall enhancements in electric retail competition for the benefit of all end-users; and, WHEREAS, the Steering Committee and TXU Electric Delivery have entered into a Settlement Agreement pending approval by the 20 Cities that passed show-cause resolutions and ratification by other member cities with original jurisdiction; and, WHEREAS, TXU Electric Delivery has agreed to improve communication, coordination and timing of construction in rights-of-way, permit development of a tariff that will allow city mandated underground placement of distribution facilities, modify certain franchise renewal negotiation positions, and improve meter reading on certain city accounts that are estimated; and, WHEREAS, TXU Electric Delivery has committed to the Steering Committee during the period of rate case abatement to share information on certain company operations and procedures that should enhance the Cities' ability to appropriately exercise regulatory responsibilities in the rate proceeding that TXU Electric Delivery has agreed to file on or before July 1, 2006; and, WHEREAS, the aforementioned Settlement Agreement calls for immediate and long-term benefits to flow to all city members of the Steering Committee which in turn have indirect but positive benefit to all city residents and public safety in general; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PARIS, PARIS, TEXAS: Section 1. That the findings set out in the preamble to this resolution are hereby in all things approved. Section 2. That the Settlement Agreement between the Cities' Steering Committee and TXU Electric Delivery, attached hereto and for all purposes incorporated herein as Exhibit A, shall be and is hereby in all things ratified. Section 3. That this resolution shall be effective from and after its date of passage. PASSED AND APPROVED this 14th day of March, 2005. Curtis Fendley, Mayor ATTEST: Janice Ellis, City Clerk APPROVED AS TO FORM: Larry W. Schenk, City Attorney r,. This Settlement Agreement ("Agreement") is made and entered into between TXU Electric Delivery Company ("Electric Delivery") and the Steering Committee of Cities Served by TXU Electric Delivery Company on behalf of all cities listed on Exhibit A to this Agreement ("Cities"), hereinafter referred to jointly herein as "SigJ18tories." WHEREAS, the city councils of 23 cities who are members of Cities passed resolutions in 2004 requiring Electric Delivery to tile with those cities infonnation that demonstrates good cause for showing that Electric Delivery's transmission and distribution rates should not be reduced (hereinafter referred to as "Show Cause Actions"); WHEREAS, other cities who are members Qf Cities are contemplating initiating similar Show Cause Actions against Electric Delivery; WHEREAS, Cities and Electric Delivery desire to resolve all outstanding issues related to the existing and potential Show Cause Actions and other regulatory issues; and WHEREAS, after extensive negotiations, Cities and Electric Delivery have reached a compromise and settlement to resolve those issues. NOW, THEREFORE, the Signatories, through their undersigned representatives, hereby agree to the following: 1. Electric Delivery agrees to propose and support in its next system-wide rate case or city rate inquiry one or more municipal rates, each without a demand ratchet, that together will cover all municipal accounts, including a street lighting rate and municipal pumping rate that will be lower than they otherwise would be. Cities agree to provide to Electric Delivery any ÏDfonnation needed to design the rates described in this paragraph. 2. Electric Delivery agrees to tile a system-wide rate case at the Public Utility Commission of Texas ("PUC") no later than July 1, 2006, based on a test year ending December 31, 2005 unless Cities and Electric Delivery mutually agree that such a filing is unnecessary. For those cities that do not have a City Council meeting in July, 2006, Electric Delivery will extend its effective date to accomplish suspension by August 31, 2006. However, if Electric Delivery files a sYStem-wide rate case at the PUC on or before June 1, 2006, then Electric Delivery will not extend its effective date. 3. Cities agree that Electric Delivery is not required to respond to any pending Show Cause Action initiated by any city listed on Exhibit A to this Agrcallent prior to July 1, 2006. Cities further agree to abate or dismiss all pending Show Cause Actions, not to pursue any abated Show Cause Actions, and not to initiate similar actions before July 1, 2006, provided the provisions of this Settlement Agreement are honored. Cities agree not to intervene in, or participate in any manner in, any show cause action initiated at the PUC or in any other jurisdiction prior to the proceeding described in paragraph 2, or in any appeals of such show cause actions, except as necessary to protect the tariff or tariff-etrorts associated with paragraph 1 or to protect the city or .' . ,., 1 its residents ftom being prejudiced in any show cause action pending on appeal at the POCo If Cities intervene in a show cause action Pending on appeal at the PUC, then Cities agree not to ta1ce any position in that proceeding that is inconsistent with its obligations under this Settlement Agreement. 4. In consideration for Cities' obligations under this Agreeiuent, Electric Delivery agrees to make a cash payment of 58.5 million to Cities by the later of March 31,2005 or two weeks after receiving notice ftom Cities that (1) all cities listed on Exhibit B to this Settlement Agreement have abated or dismissed show cause actions pending against Electric Delivery, and (2) each city on Exhibit e to this Settlement AIr_nent has passed a resolution ratifiying this Settlement Agreement or provided to Cities a letter in substantially the same form as Exhibit D to this Settlement Agreement that has been signed by an authorized representative of the city. Starting March 31, 2006, and each March 31- thereafter, Electric Delivery will make an annual cash payment of 58 million to Cities. Electric Delivery's obligation to make this payment ceases on the date upon which Cities fail to comply with their obligations under this Agreement or the date upon which the tariffs approved in Electric Delivery's next system-wide rate case at the poe or in a city rate inquiry become effective on a temporary or permanent basis ("Termination Datej; provided, however, in the year the new tariffs become effective, the annual payment shall be prorated until the Termination Date. 5. Electric Delivery agrees to wømc with Cities to improve the timeliness of streetlight maintenance and to develop a procesJ so that every city-owned and Electric Delivery-owned street light is assigned an identifiable geographic location. Signatories agree to establish a task force of seniOr employees that will develop, by June 30, 2005, the process and planned rollout for the street light assignment project. Electric Delivery also agrees to provide to Cities a specific contact person (or persons) within Electric Delivery who will be responsible for handling all unresolved Cities' requests with respect to streetlights, including, but not limited to, billing, maintenance, installation, removal, and account initiation and closure. Signatories agree to diligently pursue resolution of the issues discussed in this paragraph; however, failure to reach an agreement with respect to these issues will not constitute a breach of this Settlement Agreement by either Cities or Electric Delivery. 6. Electric Delivery agrees to work with Cities to establish improved communication, coordination, and timing of construction concerning relocations of Electric Delivery's fàcilities in public right of way. SigJ1atories agree to establish a task force of senior employees that will develop, by June 30, 2005, the process and planned rollout of an improved relocation process. Signatories agree to düigently pursue resolution of the issues discussed in this paragraph; however, failure to reach an a&1ee.uent with respect to these issues will not constitute a breach of this Settlement AgIeement by either Cities or Electric Delivery. 7. Electric Delivery agrees to discuss with Cities the payment of franchise fees on a quarterly basis regardless of whether the basis for a quarterly payment is historic or proSPective and the standardization of a ûanchise renewal process that permits transition Û"Om a prospective basis to a historic basis where the franchise is up for renewal. Signatories agree to diligendy pursue discussion of the issues discussed in this paragraph; however, failure to reach a resolution . - ~.,. 2 of these issues will not constitute a bæach of this Settlement Agreement by either Cities or Electric Delivery. 8. Electric Delivery agrees to negotiate with Cities. and Cities agree to approve, a tariff that permits Cities to request under¡roundins of new or existing distribution facilities. The tariff shall ensure full cost recovery by Electric Delivery through a surcharge in the requesting city in the event that no third party is required by Electric Delivery's tariff, or applicable city ordinance, to pay for under grounding costs. That tariff will also allow Cities to request undergrounding of transmission lines to the extent Electric Delivery determines that (a) such undergrounding is feasible, (b) such undergroundina is consistent with the PUC's Substantive Rules and ERCOT's requirements, and (c) Electric Delivery can recover the costs of such undergrounding through a surcharge in the requesting city. Electric Delivery will not be obligated to tile the tariff for city approval until after the expiration of the Price to Beat or the modification of the Price to Beat in a manner that allows pass through of tariff charges to the ultimate consmner. 9. Electric Delivery agrees to provide quarterly updates to representatives designated by Cities and their consultants conœmiDg Electric Delivery's capital expenditure projects and affiliate transactions, the creation and regulatory treatment of a Pension and Health Benefits Reserve fur Electric Delivery, possible workable parameters for performance based rates for Electric Delivery, and other topics as agreed upon by the Signatories. Electric Delivery will work with Cities to provide information requested by Cities concerning those topics. 10. Electric Delivery shall pay up to S 1 0,000 per month in regulatory expenses directly to Cities' consultants, after receipt of appropriate documentation and invoices, provided said expenses may be defeJTed for recovery. Cities agree to support recovery of such costs in Electric Delivery's next rate case. Should recovery be denied by the PUC, then the payments will immediate! y cease. 11. Electric Delivery agrees to wolk with Cities to establish better communications between the Cities and Electric Delivery with respect to access to city meters for monthly readin¡. Each city shall provide in writin& by Mard131, 2005, a contact person for inaccessible meters for city accounts, and sbaIl promptly notify Electric Delivery of any change in the contact person. In months where a meter reader is unable to pin access to the premises to read the meter on regular meter reading trips, or in months when meters are not read, Electric Delivery agrees to provide the customer with a postcard and request the customer to read the meter' and relum the card to Electric Delivery. If the postcard is not received by EleCtric Delivery in time for billing, Electric Delivery may estim.te the meter reading and issue a bill. Electric Delivery agrees that all municipal meters will be read at least once every three months by it or by the respective city. The failure of a city to designate a contact person for inaccessible meters affects only that city and does not adversely impact anyotha- city or mitipte responsibilities and benefits otherwise inherent to this Agreement. 12. Electric Delivery agrees to reimburse Cities for the expenses incurred related to the Shuw Cause Actions in an amount not to exceed S 1 00,000 after receipt of appropriate documentatiun and invoices, and Cities agree that those costs can be deferred for recovery in its next rate ~ and agree to support deferral and recovery in that case. Notwithstanding any provisi\..ns in . . .". 3 existing applicable Û'aDchise agreements to the contrary, Electric Delivery agrees to reimburse Cities for reasonable and necessary expenses incutred in Electric Ddivery's next rate case in an amount not to exceed $2,000,000. The rate case expense reimbursements will be made monthly, beginning with the first month after the consultants are hired. Cities further agree not to contest the recovery of Cities' rate case expenses and Electric -Delivery's reasonable and necessary rate case expenses in Electric Ddivcry's next rate case. Electric Delivery further agrees to pay, and Cities agrees to accept, $150,000 in settlement of all previously disputed regulatory expenses. Electric Delivery will not seek reimbursement of that $150,000 amount in Electric Delivery's rates. 13. Electric Delivery agrees that, in ftanchise negotiations, it will not seek to extend the prohibition on reimbursement of mUlÚcipal rate case expenses beyond June 2008. 14. Electric Delivery agrees that if the 2005 Texas Legislature considers the implementation of a nodal pricing system in ERCaf, then Electric Delivery will provide infonDation to the Legislature concerning the importance of a vibrant electric transmission system and the benefits of the expansion of transmission facilities in helping 'to reduce congestion costs. 15. Signatories acknowledge that Electric Delivery intends to offer certain terms of this Settlement Agr~lcnt to cities served by Electric Delivery that arc not listed on Exhibit A ("Negotiations"). Electric Delivery agrees that all cities listed on Exhibit A are entitled to Most Favored Nations protection during those Negotiations and that any benefits that Elecbir. Delivery agrees to provide to any city during those Negotiations that arc not aJready included in this Settlement Agreement will be offered to all cities listed on Exhibit A. Cities acknowledge and agree that to receive any additional benefits from Electric Delivery, additional consideration fiom Cities to Electric Delivery may be required. 16. The Signatories agree that the amounts paid by Electric Delivery to Cities pursuant to paragraphs 4, lOt and 12 of this Agrctment are paid solely in oonsideration for Cities' abatement or dismissal of, and forbearance ûom filing or pursuing, Show Cause Actions against Electric Delivery and Cities' agreement to abide by the terms of this ~cement, and to reimburse Cities' expenses associated with the Show Cause Actions and other regulatory proceetfings. To the extent that the amounts paid may be in excess of Cities' expenses, the excess is paid solely in order to settle the matters that are the subject of this Aatccment. Signatories recognize and agree that the payments specified in this A&iocment are not a rate reduction, refund, rebate, discount, preference or privilege of any kind for services provided by Electric Delivery or any of its affiliates or predecessors in interest under any tariff: whether in the past, now, or in the future. As such, the provision of electric delivery service to Cities by Electric Delivery or any affiliate or predecessor has been and will cœtinue to be governed solely by the rates, terms, and conditions of the applicable tariði. 17. Cities agree that for a ten-day period following the date this Settlement Agrecn1ent is executed, neither Cities nor the cities listed on Exhibit A will make any public statements or take any public action conceming the existence of a settlement or the terms of the Settlement Agreement . - ~.' 4 18. This Agreement shall become effective only upon the execution of this Agreement and the entry of resolutions or orders abating or dismissing the Show Cause Actions. 19. Each person executing this Agreement represents that he or she is authorized to sign this Agreement on behalf of the party rept eaented. 20. The Signatories expressly acknowledge and agree that oral and written statements made by any party or its representative during the course of the settlement negotiations that led to this Aareement cannot be. used or POrtrayed as an admission or concession of any sort and shall not be admissible as evidence in any proceeding in any forum. Executed on this the 21: day of February, 2005, by the Sip.tories hereto, by and through their uderllped duly authorized repres-tadves. TXU Eleetrle DeHvery Company SteerIDl Committee of Cities Served by TXU EIeetrIe DeUvery Company on behalf of an ddes Bated on Exhibit A to this Agreement U1Æ1 . . ,... s Emlbit A City of Addison City of Allen C ity 0 f Alvarado City of Andrews City of Archer City City of Arlington City of BeltOD City of Benbrook City of Big Spring City of Breckenridge City of Bridgeport City of Brown wood City of Buftàlo City of Burkbumett City of Burleson City of Caddo Mills City of Cameron City of Canton City of emollton City ofCe1iDa City of Centerville City of Clebume City of Colleyville City of Co 1IiDsviJ Ie City of Comanche City of Corinth City of Crowley City of Dallas City of Da1 worthiqtœ Gardeas City of DeLeon City of Denison City of Early City of Eastland City of Bdgccliff Village City ofBuless City of Farmeø Branch City of Flower Mound City of Forest Hill City of Fort Worth City of Frisco City of Frost City of Glean Heights City of Grand Prairie City of Granger City of GrapeviDe City ofGuDter City of Harker Heiahts City of Heath City ofHemietta City of Hewitt City of Highland Park City of Honey Grove City of Howe City of Hurst City of Hutto City of Irving City of Jolly City of Josephine City of Justin City of KanfnulJ1 City oflC.cller City of Kereos City of Lakeside City of L-~ City ofLiDdale City of Little RiWl" Academy City of Luella City ofMaJ.~ff City ofMaDsfield City ofMc~iTm~ City of Midland City ofMDford City of Murphy City ofMurchisOD City of New Chapel Hill City of North RichIand Hills City of 0 'DoDDelI City of Oak Leaf City of Oak Point City of Odessa City of Ovilla City ofPa1estine City ofPanteøo City of Paris City ofPlano City ofRaDger City of Rhome City of Richardson City ofRichland Hi11s City oflloanoke City ofRobiDJon City of RDckwa1l City oflo... City of Rowlett City of~n City of Snyder City of Soot\1þ11ce City of Sulphur Springs City of SuDnyvale City of Sweetwater City of Temple .' . .". City of The Colony City of Tyler City of University Park City of Venus City of Waco City ofWatauga City of White Settlement City of Wichita Falls City of Wood way . . Exhibit B City of Arlin¡ton City of Benbrook City of Brown wood City of Burleson City of Carrollton City of Dallas City of DaJworthiDgton Gazdeos City of Denison City of Pt. Worth City of Harker Heights City of Heath City of Pantego City of PIano City of Richlaud Inns City of Robinson City of Rockwall City of Snyder City of Sulphur Springs City of The Colony City of Woodway .' ., .",. . . . I Exhibit C City of Addison City of Allen CityofADdrews City of Archer City City of Belton City ofBiø SpriDg City of Breckemidge City of Brid¡eport City of Bwtbumett City of CeliDa City of Clebume City of Co11eyvi1le City of DeLeœ City of Early City of Bastland City of Euless City of Farmers Branch City of Flower Mound City of Forest Hin City of Frisco City of Glenn Heights City of Grand Prairie City of Grapevine City ofHemietta City ofmgÞ1Md Parle: City of Howe City of HUIIt City of IrviDg City ofK.e1ler City of Lakeside City of Lamesa City of LiDðI1e City of Little River Academy C it)' of MaDsfield City of McKhmey City of Midland City of Murphy City of North lUchlAd Hills City of Oak Point City of O'Dolme1l City of Odessa City of Palestine City of Paris C ity of Richardson City of Roanoke City of Rowlett City of Sherman City of Sol1thl.1œ City of Swmyvale City of Sweetwater City of Temple City of Tyler City ofUDiversity Park City of Waco City ofWatauga City of White Settlement City of Wichita Falls .' .' ,...- EXHIBIT D March , 2005 Mr. Geoffrey Gay Lloyd Gosselink Blevins Rochelle Baldwin & Townsend, P.C. 111 Congress Avenue, Suite 1800 Austin, Texas 78701 Re: Settlement Agreement between Steering Committee of Cities Served by TXU Electric Delivery and TXU Electric Delivery Company Dear Mr. Gay: I hereby acknowledge that the Steering Committee of Cities Served by TXU Electric Delivery has the authority to act on behalf of the City of in the negotiation and execution of a settlement agreement with TXU Electric Delivery Company, dated February 22, 2005. I also represent that I am duly authorized by the City of to sign this letter. Sincerely, [Name] [Position]