0834
ORDINANCE NO.
831
AN ORDINANCE AMENDING ORDINANCE NO. 571, THE EXISTING GAS
FRANCHISE BETWEEN THE CITY AND LONE STAR GAS COMPANY,
PREDECESSOR IN INTEREST TO TXU GAS COMPANY, TO PROVIDE FOR
A DIFFERENT CONSIDERATION AND TO AUTHORIZE THE LEASE OF
FACILITIES WITHIN THE CITY'S RIGHTS-OF-WAY; PROVIDING AN
EFFECTIVE DA TE; PROVIDING FOR ACCEPT ANCE BY TXU GAS
COMPANY; FINDING AND DETERMINING THAT THE MEETING AT
WHICH THIS ORDINANCE IS PASSED IS OPEN TO THE PUBLIC AS
REQUIRED BY LAW.
WHEREAS, on December 5, 1992, the City Council adopted Ordinance No. 571, an
ordinance granting Lone Star Gas Company (now TXU Gas Company) ("TXU Gas" or
.'Company") a franchise for a period of twenty {20) years to use the public rights-of-way within
the City of Southlake (the "City") for the purpose of laying., maintairÜng, using and operating a
system of pipelines for the provision of natural gas to rc~:identlal, commercial and industrial
customers located in the City (the "F'rancbi~£'); and
WHEREAS, pursuant to that certain Settlement Agreement entered into by and between
TXlJ Gas and the City, as approved by the City Ccl~ncil on September 3, 2002, TXU Gas and the
CiIy desire to amend the Franchise to amend the manner in which franchise fees paid pursuant to
1 ;ìC Franchise win be calculated and to authorize in certain circumstances the lease of facilities
OWlv;:d by TXU Gas and located in the public rights-of-way.
~OW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF SOUTH LAKE, TEXAS:
SECTION 1: Effective January I, 2002. Section ~ 2 of the Franchise is deleted in its
entirely and replaced with the following.
SECTION 12:
A.
Consideration.
The consideration payable by Company for t!1e nghts and privileges granted to
Company by the franchise ordinance h~rctofore dul:' passed by the governing
body of this City and duly accepted by Company is four percent (4%) of the
Gross Revenues, as defined in Section 12.B. below, received by Company.
B.
Definitions.
"Gross Revenues" shall mean an revenue derived or received, directly or
iTldirectly, by the Company from or in connectiop. with the operation of the
System within the corporáte limits of the City and including, without limitation:
(1) all revenues received by the Company from the sale of gas to all dasses of
\\ :'d.;!I':~l....1 'rd",ancc, (Ja, rraIlC]"j': ArnC"GnlCd¡ ¡)4.12 Oì.cloc
Page I
(2)
(3)
(4)
customers within the City;
all revenues received by the Company from the transportation of gas
through the pipeline system of Company within the City to customers
located within the City;
the value of gas transported by Company for Transport Customers through
the System of Company within the City ("Third Party Sales"), with the
value of such gas to be reported by each Transport Customer to the
Company, provided, however, that should a Transport Customer refuse to
furnish Company its gas purchase price, Company shall estimate same by
utilizing Company's monthly industrial Weighted Average Cost of Gas, as
reasonably near the time as the transportation service is performed; and
"Gross Revenues" shall include:
(a)
other revenues derived from the fonowing 'miscellaneous
charges' :
1.
charges to connect, disconnect, or reconnect gas within the
City;
11.
charges to handle returned checks from consumers within
the City;
111.
such other service charges and charges as may, from time
to time, be authorized in the rates and charges on file with
the City; and
IV.
contributions in aid of construction" ("CIAC");
(b)
revenues billed but not ultimately collected or received by the
Company; and
(c)
gross receipts fees.
(5)
"Gross Revenues" shall not include:
(a)
the revenue of any Person including, without limitation, an
affiliate, to the extent that such revenue is also included in Gross
Revenues of the Company;
sales taxes;
any interest income earned by the Company; and
(b)
(c)
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c.
D.
E.
(2)
(d)
all monies received Îrom the lease or sale of real or personal
property, provided, however, that this exclusion does not apply to
the lease of facilities within the City's right of way.
Calculation and Payment of Franchise Fees Based on CIAc.
(1)
The franchise fee amounts based on "Contributions in aid of Construction"
("CIAC") 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 CIAC shall be paid at
least once annually on or before April 30 each year based on the total
CIAC recorded during the preceding calendar year.
Effect of Other Municipal Franchise Ordinance Fees Accepted and Paid by
Company.
(1)
If Company should at any time after the effective date of this Ordinance
agree to a new municipal franchise ordinance, or renew an existing
municipal franchise ordinance, with another municipality, which
municipal franchise ordinance determines the franchise fee owed to that
municipality for the use of its public rights-of-way in a manner that, if
applied to the City, would result in a franchise fee greater than the amount
otherwise due City under this Ordinance, then the franchise fee to be paid
by Company to City pursuant to this Ordinance shall be increased so that
the amount due and to be paid is equal to the amount that would be due
and payable to City were the franchise tee provisions of that other
franchise ordinance applied to City.
(2)
The provisions of this Subsection D apply only to the amount of the
franchise fee to be paid and do not apply to other franchise fee payment
provisions, including without limitation the timing of such payments.
Company Franchise Fee Recovery Tariff.
(1)
Company may file with the City a tariff amendment(s) to provide for the
recovery of the franchise fees under this amendment.
City agrees that (i) as regulatory authority, it will adopt and approve the
ordinance, rates or tariff which provide for 100% recovery of such
franchise fees as part of Company's rates; (ii) if the City intervenes in any
regulatory proceeding before a federal or state agency in which the
recovery of Company's franchise fees is an issue, the City will take an
affirmative position supporting 100% recovery of such franchise fees by
WSouthlake'.Ordinances\Cìas FranchIse Amendment.0412 03 doc
Page 3
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.
(3)
City agrees that it will take no action, nor cause any other person or entity
to take any action, to prohibit the recovery of such franchise fees by
Company.
F.
Lease of Facilities Within City's Rights-of-Way.
Company shall have the right to lease, license or otherwise grant to a party other
than Company the use of its facilities within the City's public rights-of-way
provided: (i) Company first notifies the City of the name ofthe lessee, licensee or
user; the type of service(s) intended to be provided through the facilities; and the
name and telephone number of a contact person associated with such lessee,
licensee or user and (ii) Company makes the franchise fee payment due on the
revenues from such lease pursuant to Subsections A and B hereof. This authority
to lease facilities within city's rights-of-way shall not affect any such lessee,
licensee or user's obligation, if any, to pay franchise fees.
G.
Payment Terms.
Except for franchise fees based on revenues from "contributions in aid of
construction," which Company shall pay in accordance with subsection C. hereof,
Company shall pay the franchise fee on or before the 1st day of June of each year
for the preceding year during the term of this franchise, and payment shall be for
the year the payment is made. Such payments shall be shall be for the rights and
privileges herein granted to Company, including expressly, without limitation, the
right to use the streets, alleys, easements and public ways of said City. It is also
expressly agreed that the aforesaid annual payment shall be in lieu of any and all
other and additional occupation taxes, easement, and franchise taxes or charges
(whether levied as an ad valorem, special or other character of tax. or charge), in
lieu of municipal license and inspection fees, street taxes, and street or alley
rentals or charges, and all other and additional municipal taxes, charges, levies,
fees, and rentals of whatsoever kind and character which City may now impose or
hereafter levy and collect, excepting only the usual general or special ad valorem
taxes which City is authorized to levy and impose upon real and personal
property. Should City not have the legal power to agree that the payment of the
foregoing sums of money shall be in lieu of taxes, license fees, street or alley
rental or charges, easement or franchise taxes or charges aforesaid, then City
agrees that it will apply so much of said sums of money paid as may be necessary
to satisfy Company's obligations, if any, to pay any such taxes, licenses, charges,
fees, rentals, easement or franchise taxes or charges.
W\Southlake\Ordinances\Gas Franchise Amendment 04.12.03.doc
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H.
Reports.
Company agrees that on the same date that payments are made, as provided in this
Section 12, it will file with the City Secretary a sworn report showing the Gross
Revenues received by the Company within City during the calendar year
preceding the date of payment. City may, if it sees fit, have the books and records
of Company examined by a representative of City to ascertain the correctness of
the sworn reports agreed to be filed herein.
SECTION 2: In all respects, except as specifically and expressly amended by this
ordinance, the existing effective franchise ordinance heretofore duly passed by the governing
body of the City and duly accepted by Company shall remain in full force and effect according to
its terms until said franchise ordinance terminates as provided therein.
SECTION 3: 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 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 4: This Ordinance shall be in full force and effect following (i) its adoption;
and (ii) the filing with the City Secretary within thirty (30) calendar days following adoption of
this Ordinance of written acceptance of this Ordinance by Company in substantially the
follo\\ ing form:
To the Honorable Mayor and City Council:
TXlJ Gas Distribution, a division of TXU Gas Company, acting by and through
the undersigned authorized officer, hereby accepts in all respects, on this the ~~
day of ~'¡'~b(lL , 2005, Ordinance No. ~~tf amending the
current gas fr nchlse between the CIty and TXU Gas and the same shall constitute
and be a binding contractual obligation ofTXU Gas and the City.
TXU Gas Distribution
A division ofTXU Gas Company
By~Q~~
Vice President
SECTION 5: 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.
W S')lIlhlake( hdinances\Gas hancl1ise Amendment 04.12'n.doc
Page 5
SECTION 6: The City Secretary is hereby directed to publish this Ordinance in
accordance with Section 3.13 of the City Charter.
PASSED AND APPROVED ON FIRST CONSIDERATION ON THIS C44A DAY
OF Oa/P/K[0Pr- 2002.
PASSEDAPPROVED ON SECOND CONSIDERATION ON THIS
DAY OF IVOve:vkdoer 2002.
MAYOR
Signed on the 5th of August 2003.
ATTEST:
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CITY SECRETARY k .. '•.�11\
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APPROVE I AS '0 F . 1'11 GALITY: •
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CITY ATTORNEY
W:\Southlake\Ordinances\Gas Franchise Amendment 04.12.03.doc Page 6
INVOICE
Star-Telegram Customer ID: CIT57
400 W.7th Street Invoice Number: 220880061
FORT WORTH,TX 76102
(817)390 7761 Invoice Date: 11/8/02
Federal Tax ID 22-3148254 Terms: Net due in 21 days
Due Date: 11/30/02
Bill To: PO Number:
CITY OF SOUTHLAKE
1400 MAIN ST Order Number: 22088006
STE 440 Sales Rep: 073
SOUTHLAKE, TX 76092-7604 Description: NOTICE OF PUBLI
Publication Date: 11/8/02
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NOTICE OF PUBLIC H N 37.7E OF PUBLrc I3580 1 50 50 LINE $6.63 $331.50
HEARING
Notice Is ihyereby given
Sales Discount thetCitCity
of Council
($291.00)
Texas, that a public
hearing will be held
on November 19,
2002, at 6:00 .m. or
Immediately following
the Work Session,
during the Regular Net Amount: $40.50
City Council Meeting
to be held in the City
Council Chambers of
Town Hall, 1400 Main
Street, Southlake,
Texas.
Purpose of the public
hearing is to consider
the second reading of
the following ordi-
nance:Ordi [-ill
Ei C E II V
Ordinance n No. en �C v
An ordinance amend-
Ingg Ordinance No.
5T1, the existing gas
franchise between The
City and Lone Star rynUO2 .J
Gas Company, pre- DEC 2 L
decessor in interest to
TXU Gas Company,
to provide for a dff-
ferent consideration
and to authorize the
• lease of facilities
THE STATE OF TEXAS within the
City'srghrovidingan OFFICE OF CITY SECRETARY
County of Tarrant effective date; pro-
tVnig for acceptance
by TXU Gas Com-
pany; finding and
Before me,a Notary Put doteting atgwthict ins ,and State,this day personally appeared KAREN WILLIAMS, Bid and Legal Coordinator
for the Star Telegram, pi ordinance is paassed ;ram, Inc.at Fort Worth, in Tarrant County,Texas;and who,after being duly sworn, did depose and say
that the attached cli in; asrequired tbyy Pawlic
PP City of Southlalce ,published in the bove named paper on the listed dates: BIDS 8i LEGALS DEPT. STAR TELEGRAM
(817) 390-7182. Lori Farweu
City Secretary `
Signed V l 8\,O/&Jt,L_P
SUBSCRIBED AND SWORN TO BEFORE ME, THIS Friday,Novem r 1 ,22002.
•
9ilitizzeAcd___,
Notary Public h I,Q7 , y1
Ks ' , CHRISTY L.HOLLAND
Thank You For Your Payment MY COMMISSION EXPIRES
,, —--detY-s1720e4
Remit To: Star-Telegram Customer ID: CIT57
P.O. Box 901051 Customer Name: CITY OF SOUTHLAKE
FORT WORTH,TX 76101-2051 Invoice Number: 220880061
Invoice Amount: $40.50
PO Number:
Amount Enclosed: $
INVOICE
Star-Telegram Customer ID: CIT57
400 W. 7th Street Invoice Number: 221411521
FORT WORTH,TX 76102
(817)390-7761 Invoice Date: 11/22/02
Federal Tax ID 22-3148254 Terms: Net due in 21 days
Due Date: 11/30/02
Bill To: PO Number:
CITY OF SOUTHLAKE
1400 MAIN ST Order Number: 22141152
STE 440 Sales Rep: 073
SOUTHLAKE, TX 76092-7604 Description: CITY OF SOUTHLA
Publication Date: 11/22/02
.a,�,�,�$ �-��-•zP z c � ���>.. 9
•
CITY OF SOUTHLAKE,TF"" '3580 1 39 39 LINE $6.63 $258.57
CITY OF SOUTH-
LAKE, TEXAS
AOrord Ordinance
amend-d-
34
Sales Discount ingg Ordinance No. ($226.98)
51, the existing ggas
franchise between me
City and Lone Star
Gas Company, pre-
decessor in interest of
to p Gas Company Net Amount: $31.59
to provide for a dif-
ferent consideration
and to authorize the
lease of facilities
within the City's rights-
Of-way; providing an
effective date; pro-
vidingqfor acceptance - r�r�
by T)cU Gas Com- DECE U
pang; findingQ and
determining tFiat the
meeting at which this
ordinance is passed
is open to the public
as reqquired by law 0 2002
PASSED AND AP- - DECJLLI! UC PROVED THIS THE
19TH DAY OF NO-
VEMBER, 2002,
DURING THE REG-
ULARc COUN-
CIL MEETING. OFFICE OF CITY SECRETARY
CIL
MAYOR: Rick Stacy
ATTEST. Lori Farwell,
AP�PttyyROVEDaryAS TO
THE STATE OF TEXAS FORM: E. Allen Tay-
County of Tarrant lor, Jr.
Before me,a Notary Public in and for said County and State, this day personally appeared KAREN WILLIAMS, Bid and Legal Coordinator
for the Star-Telegram,published by the Star-Telegram, Inc. at Fort Worth, in Tarrant County,Texas;and who,after being duly sworn, did depose and say
that the attached clipping of an advertisement was published in the above named paper on the listi?21 dates: BIDS 8L LEGALS DEPT. STAR TELEGRAM
(817) 390-7182.
Si ned D
g W ` Jl l u &i:w
SUBSCRIBED AND SWORN TO BEFORE ME, THIS Saturday,Novem r„23 2002.
Notary Public v//
i. :,,,,; '`', CHRISTY L.HOLLAND
Thank You For Your Payment MY COMMISSION EXPIRES
',rot ftti JULY 31 QQ4 ,__„
leseessrat
Remit To: Star-Telegram Customer ID: CIT57
P.O. Box 901051 Customer Name: CITY OF SOUTHLAKE
FORT WORTH, TX 76101-2051 Invoice Number: 221411521
Invoice Amount: $31.59
PO Number:
Amount Enclosed: $