Ord 012-2003 2/18/2003t
ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF WICHITA
FALLS, TEXAS, AMENDING ORDINANCE NO. 96 -2002, THE EXISTING
GAS FRANCHISE BETWEEN THE CITY AND 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, on November 5, 2002, the City Council passed and approved
Ordinance No. 96 -2002, adopting a franchise agreement with TXU Gas Company; and
WHEREAS, it is necessary to clarify the franchise exemptions for Sheppard Air
Force Base.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF WICHITA FALLS, TEXAS, THAT:
SECTION 1. Ordinance No. 96 -2002 of the City of Wichita Falls, 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);
(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, except as noted in B.(5)(e),
(3) the value of gas transported by Company for Transport Customers
through the System of Company within the City ( "Third Party
Sales "), except as noted in B.(5)(f), 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;
(d) all monies received from the lease or sale of real or personal
property; and
(e) all monies received from the sale or transportation of gas to
Sheppard Air Force Base. (City Ordinance No. 1906.);
(f) the value of Third Party Sales gas transported by the
Company to Sheppard Air Force Base.
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.
(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 13�`day of a.rc I+` 20tH,
Ordinance No. 10, aou3 amending 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
By: 7 C��,
Vice President
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 18th day of February, 2003, at which meeting a
quorum was present and voting.
ATTEST:
MAL
City glerk
APPROVED AS TO FORM:
City Attorney
l ► ILA
Mayor