Loading...
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) W' Southlake',()rdinanccsIGas Franchise Amendment 04.12.03.doc Page 2 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 Page 4 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: - a ,,,,,,,,,,,,%,„,. ..„f�H'�kF,�� ,, : CITY SECRETARY k .. '•.�11\ _ 1—' ;ii. i. :01• / APPROVE I AS '0 F . 1'11 GALITY: • — A.^ `/ 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 ��VV at �y y� Y m+ "�x�"4:�Rh "YY'y � �' i -IA, , 1 S,.. 0("g , rv<<..,g , n .,, �� 11 ount 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: $