Ord 096-2002 11/5/2002 1
ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF WICHITA
FALLS, TEXAS, AMENDING THE EXISTING GAS FRANCHISE
BETWEEN THE CITY AND TXU GAS COMPANY, TO PROVIDE FOR A
DIFFERENT CONSIDERATION; PROVIDING AN EFFECTIVE DATE;
PROVIDING FOR ACCEPTANCE BY TXU GAS COMPANY; FINDING
AND DETERMINING THAT THE MEETING AT WHICH THIS
ORDINANCE WAS PASSED WAS OPEN TO THE PUBLIC AS
REQUIRED BY LAW.
WHEREAS, TXU Gas Company (hereinafter called "TXU Gas") is, through its
TXU Gas Distribution division, engaged in the business of furnishing and supplying gas
to the general public in the City, including the transportation, delivery, sale, and
distribution of gas in, out of, and through the City for all purposes, and is using the
public streets, alleys, grounds and rights-of-ways within the City for that purpose under
the terms of a franchise ordinance heretofore duly passed by the governing body of the
City and duly accepted by TXU Gas; and
WHEREAS, the City and TXU Gas desire to amend said franchise ordinance to
provide for a different consideration and to authorize the lease of facilities within the
City's rights-of-way.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF WICHITA FALLS, TEXAS, THAT:
SECTION 1: The existing gas franchise ordinance between the City and TXU
Gas Company is amended as follows:
A. Effective January 1, 2002, the consideration payable by TXU Gas for the
rights and privileges granted to TXU Gas by the franchise ordinance
heretofore duly passed by the governing body of this City and duly
accepted by TXU Gas is hereby changed to be four percent (4%) of the
Gross Revenues, as defined in Section 1.B. below, received by TXU Gas.
B. "Gross Revenues" shall mean all revenue derived or received, directly or
indirectly, by the Company from or in connection with the operation of the
System within the corporate limits of the City and including, without
limitation:
(1) all revenues received by the Company from the sale of gas to all
classes of customers within the City except as noted in B(5)(e);
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(2) 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;
(3) 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 TXU Gas
Distribution's monthly industrial Weighted Average Cost of Gas, as
reasonably near the time as the transportation service is performed;
and
(4) "Gross revenues" shall include:
(a) other revenues derived from the following `miscellaneous
charges':
i. charges to connect, disconnect, or reconnect gas
within the City;
ii. charges to handle returned checks from consumers
within the City;
iii. 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;
(b) sales taxes; and
(c) any interest income earned by the Company;
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(d) all monies received from the lease or sale of real or personal
property; and
(e) all monies received from the sale of gas to Sheppard Air Force
Base. (City Ordinance No. 1906.).
C. 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.
D. Effect of Other Municipal Franchise Ordinance Fees Accepted and Paid
by TXU Gas
(1) If TXU Gas 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 TXU Gas 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 fee 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.
E. TXU Gas Franchise Fee Recovery Tariff
(1) TXU Gas may file with the City a tariff amendment(s) to provide for
the recovery of the franchise fees under this amendment.
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(2) 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 TXU Gas' rates; (ii) if the City
intervenes in any regulatory proceeding before a federal or state
agency in which the recovery of TXU Gas' franchise fees is an
issue, the City will take an affirmative position supporting 100%
recovery of such franchise fees by TXU Gas 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
TXU Gas.
(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 TXU Gas.
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 TXU Gas shall remain in full force and
effect according to its terms until said franchise ordinance terminates as provided
therein.
SECTION 3:.This ordinance shall take effect as provided by the Charter of the
City of Wichita Falls and TXU Gas' acceptance. TXU Gas shall, within thirty (30) 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:
To the Honorable Mayor and City Council:
TXU 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 �, ,�P � f20 Ga
Ordinance No. qLiLO-21amending the current gas franchise
between the City and TXU Gas and the same shall constitute and
be a binding contractual obligation of TXU Gas and the City.
TXU Gas Distribution
A Division of TXU Gas Company
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SECTION 4: It is hereby officially found and determined that the meeting at
which this Ordinance was passed was 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.
PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF
WICHITA FALLS, TEXAS, on this the 5th day of November, 2002, at which meeting a
quorum was present and voting.
Mayor
ATTEST:
City erk
APPROVED AS TO FORM:
My Attorney