OR 2002-1012 City and Lone Star Gas CompanyAN ORDINANCE OF THE CITY OF COPPELL, TEXAS
ORDINANCE NO. 2002-1012
AN ORDINANCE OF THE CITY OF COPPELL, TEXAS,
AMENDING ORDINANCE NO. 96743, IN PART, THE EXISTING
FRANCHISE BETWEEN THE CITY OF COPPELL AND LONE STAR
GAS COMPANY A/K/A TXU GAS COMPANY, BY AMENDING
SECTION 10 TO PROVIDE FOR A DIFFERENT CONSIDERATION;
PROVIDING AUTHORIZATION FOR THE LEASE OF FACILITIES
WITHIN THE CITY'S RIGHTS-OF-WAY; PROVIDING FOR
ACCEPTANCE 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; AND
PROVIDING AN EFFECTIVE DATE.
WHEREAS, City of Coppell (hereinafter called "City") Ordinance No. 96743, passed and
approved by the City Council on February 13, 1996, provide the existing franchise with TXU Gas
Company; and,
WHEREAS, TXU Gas Company (hereinafter called "TXU") 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-way 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 COPPELL, TEXAS:
SECTION 1. That Ordinance No. 96743, the existing gas franchise ordinance between the
City and TXU Gas Company, is hereby amended, in part, by amending Section 10 to provide for a
different consideration, 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 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:
all revenues received by the Company from the sale of gas to all classes
of customers, except Residential Governmental, Commercial
Governmental, and Industrial Governmental, within the City;
(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 out 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; and
(d) all monies received from 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
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
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.
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 even 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. That Ordinance No. 96743, the existing gas franchise ordinance between the
City and TXU Gas Company, is hereby amended, in part, by providing authorization for the lease of
facilities within the City's rights-of-way, which shall read as follows:
"Lease of Facilities Within the City's Rights-of-Way. TXU Gas shall have the right
to lease, license or otherwise grant to a party other than TXU Gas the use of its
facilities within the City's public rights-of-way provided: (i) TXU Gas first notifies
the City of the name of the 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) TXU Gas makes the
franchise fee payment due on the revenues from such lease pursuant to Sections 1.A.
and 1.B. of this Ordinance. 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."
SECTION 3. In all respects, except as specifically and expressly amended by this
ordinance, the existing franchise ordinance heretofore duly passed by the governing body of the
City of Coppell 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 4. This ordinance shall take effect upon its final passage 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
unde.rsigned authorized officer, hereby accepts in all respects, on this the
of /9~, 2002, Ordinance No. ~oo~ -/t9/o2 amending the current gas
franchise between the City of Coppell and TXU Gas and the same shall constitute
and be a binding contractual obligation of TXU Gas and the City of Coppell.
SECTION 4.
TXU Gas Distribution
A division of TXU Gas Company
By'~~v--- ,~~
l,,,,Jice ere~sidlnt x
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.
DULY PASSED by the City Council of the City of Coppell, Texas, this the ~____~t~lay of
2002.
APPR~D:
CANlJ~HE~HA~7-MAYOR
ATTEST:
LIBBY BALL, ~ SECRETAR~
5 50701
APPROVED AS TO FORM:
ROBERT E. HAGER, CITY ATTt
(REH/cdb 10/8/02)
6 50701