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ORD 2002-31ORDINANCE NO. 2002 - 31 AN ORDINANCE OF THE TOWN OF TROPHY CLUB, TEXAS, AMENDING ORDINANCE 94-18, AN AMENDMENT TO ORDINANCE 93-03, THE EXISTING GAS FRANCHISE BETWEEN THE TOWN OF TROPHY CLUB, TEXAS AND TXU GAS COMPANY, TO PROVIDE FOR A DIFFERENT CONSIDERATION AND TO AUTHORIZE THE LEASE OF FACILITIES WITHIN THE TOWN'S RIGHTS-OF-WAY; PROVIDING A CUMULATIVE REPEALER CLAUSE; PROVIDING FOR SAVINGS; PROVIDING SEVERABILITY; PROVIDING FOR ENGROSSMENT AND ENROLLMENT; AND PROVIDING AN EFFECTIVE DATE. 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 Town, including the transportation, delivery, sale, and distribution of gas in, out of, and through the Town for all purposes, and is using the public streets, alleys, grounds and rights - of -ways within the Town for that purpose under the terms of a franchise ordinance heretofore duly passed by the governing body of the Town and duly accepted by TXU Gas; and WHEREAS, the Town and TXU Gas desire to amend Section 8. of said franchise ordinance to provide for a different consideration and to authorize the lease of facilities within the Town's rights-of-way; NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF TROPHY CLUB, TEXAS: SECTION 1 AMENDMENT That Ordinance No. 93-03 of the Town of Trophy Club, Texas, the same being the existing gas franchise between the Town of Trophy Club and TXU Gas, is hereby amended in the following particulars, and all other articles, chapters, sections, paragraphs, sentences, phrases and words are not amended but are hereby ratified and affirmed: Section 8. 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 Town and duly accepted by TXU Gas is hereby changed to be four percent (4%) of the Gross Revenues, as defined in Section I.B. below, received by TXU Gas. Page 1 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 Town and including, without limitation: (1) all revenues received by the Company from the sale of gas to all classes of customers within the Town; (2) all revenues received by the Company from the transportation of gas through the pipeline system of Company within the Town to customers Iocated within the Town; (3) the value of gas transported by Company for Transport Customers through the System of Company within the Town ("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 TX[I 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': charges to connect, disconnect, or reconnect gas within the Town; ii. charges to handle returned checks from consumers within the Town; such other service charges and charges as may, from time to time, be authorized in the rates and charges on file with the Town; 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. (S) "Gross revenues" shall not include: (a) the revenue of any Person including, without Iimitation, an Page 2 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 Town's right of way unless the lessee is also an entity that pays franchise fees to the Town. 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 Town, would result in a franchise fee greater than the amount otherwise due Town under this Ordinance, then the franchise fee to be paid by TXU Gas to Town 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 Town were the franchise fee provisions of that other franchise ordinance applied to Town. (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 Town a tariff amendment(s) to provide for the recovery of the franchise fees under this amendment. Page 3 (2) Town 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 Town intervenes in any regulatory proceeding before a federal or state agency in which the recovery of TXU Gas' franchise fees is an issue, the Town 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 Town has intervened, the Town will take an affirmative position in any such appeals in support of the 100% recovery of such franchise fees by TXU Gas. (3) Town 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. F. Lease of Facilities Within Town's Rights -of -Way. TXU Gas shall have the right to lease, license or otherwise grant to a parry other than TXU Gas the use of its facilities within the Town's public rights-of-way provided: (i) TXU Gas first notif es the Town 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 I.A. and I.B. of this Ordinance. This authority to Lease Facilities Within Town's Rights -of -Way shall not affect any such lessee, licensee or user's obligation, if any, to pay franchise fees. G. 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 Town and duly accepted by Oncor shall remain in full force and effect according to its terms until said franchise ordinance terminates as provided therein. SECTION 2 CUN ULAT NE REPEALER This Ordinance shall be cumulative of all other Ordinances and shall not repeal any of the provisions of such Ordinances except for those instances where there are direct conflicts with the provisions of this Ordinance. Ordinances or parts thereof in force at the.time this Ordinance shall take effect and that are inconsistent with this Ordinance are hereby repealed to the extent that they are inconsistent with this Ordinance SECTION 3 SAVINGS Page 4 All rights and remedies of the Town of Trophy Club are expressly saved as to any and all violations of the provisions of any Ordinances affecting existing franchise agreements which have accrued at the time of the effective date of this Ordinance; and, as to such accrued violations and all pending litigation, both civil and criminal, whether pending in court or not, under such Ordinances, same shall not be affected by this Ordinance but may be prosecuted until final disposition by the courts. SECTION 4 SEVERABILITY If any section, article, paragraph, sentence, clause, phrase or word in this Ordinance or application thereof to any person or circumstance is held invalid or unconstitutional by a Court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Ordinance, and the Town Council hereby declares it would have passed such remaining portions of this Ordinance despite such invalidity, which remaining portions shall remain in full force and effect. SECTION 5 ENGROSSMENT AND ENROLLMENT The Town Secretary of the Town of Trophy Club is hereby directed to engross and enroll this Ordinance by copying the exact Caption and Effective Date in the minutes of the Town Council and by filing this Ordinance in the ordinance records of the Town. SECTION 6 EFFECTIVE DATE That this Ordinance shall be in full force and effect from and after its date of passage, in accordance with law, and it is so ordained. PASSED AND APPROVED by the Town Council of this 191h day of August, 2002. of Trophy Club, Texas ATTEST: Page 5 of Trophy Club, Texas r Town Secretary Town of Trophy Club, Texas APPROVED AS TO FORM: Town Attorney Town of Trophy Club, Texas Page 6