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HomeMy WebLinkAboutRes 2017-10-369 Extension of Atmos Franchise AgreementCITY OF ANNA, TEXAS RESOLUTION NO. 0 - (D-- 36,0 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANNA AUTHORIZING AN EXTENSION OF THE EXISTING FRANCHISE AGREEMENT WITH ATMOS ENGERY. WHEREAS, the Existing Franchise Agreement with Atmos Energy (the "Existing Franchise Agreement"), attached hereto as Exhibit 1, was initiated on October 18, 1992 and will expire on October 18, 2017; and WHEREAS, Staff has been working with legal counsel and representatives from Atmos to draft a new Franchise Agreement; and WHEREAS. the City Council of the City of Anna, Texas (the "City Council") desires to extend the Existing Franchise Agreement for sixty (60) days while Staff continues to work with Atmos on a new Franchise Agreement; NOW THEREFORE, BE IT RESOLVED BY THE CITY OF ANNA CITY COUNCIL: Section 1. Recitals Incorporated. The recitals set forth above are incorporated herein for all purposes as if set forth in full. Section 2. Approval of Extension The City Council hereby authorizes the City Manager to execute an Agreement with Atmos Energy extending the Existing Franchise Agreement for sixty (60) days. Said Agreement shall be drafted and approved by the City Attorney. PASSED by the City Council of the City of Anna, Texas, on this 10th day of October, 2017. ATTEST:\Oj%xjIIII APPROVED: Carrie L. Smith, City Secretary = s4in Burr, Mayor Pro Tem ZZ Zr CITY COUNCIL OF ANNA, TEXAS RESOLUTION NO. 36A PAGE 1 OF 1 AN ORDINANCE AMENDING THE EXISTING GAS FRANCHISE BETWEEN THE CITY AND 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 DATE; PROVIDING FOR ACCEPTANCE BY TXU GAS COMPANY; FINDING AND DETERMINING THAT THE MEgfr G AT WHICH THIS ORDINANCE IS PASSED IS 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 ights- ofways 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 diffirant consideration and to authorize the lea=offac:'ities withir. -1c City's h:c _Ir way; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ANNA, 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 b;7 the franchise ordinance, heretofore duly passed by the governing body of t;'.is 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; (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': 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; and Page 2 of 5 (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. C. Calculation and Payment of Franchise Fees Based on CIAC (1) The franchise fee amounts based on "Contributions in aid of Construction" CUM") 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. TXL 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 Page 3 of 5 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. F. Lease of Facilities Within 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 I.A. and I.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 2: In all respects, except as specifically and expressly amended by this ordinance, the existing effective franchise ordinance heretofore duly passed by the governing oody of the City and duly accepted by'I'XU 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 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: Page 4 of 5 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 93 day ofe�c ejC,,C, 200, Ordinance No. amending the current gas franchise between the City and TXU Gas and the same shall constitute and be a binding contractual obligation of TXTJ Gas and the City. TXU Lias Distribution A division of TXU Gas Company By Vice President SECTION 4. 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. PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF TEXAS, this the 1f -)%ay of 2002, at which meeting a quorum was present and voting.. ATTEST: City Secr&ary APPROVED AS TO FORM: City Attorney Page 5 of 5 Anna Gas Franchise ORIGINAL FRANCHISE ORDINANCE NO: _ /- 003 AN ORDINANCE GRANTING TO LONE STAR GAS COMPANY, A DIVISION OF ENSERCH CORPORATION, A CORPORATION, ITS SUCCESSORS AND ASSIGNS, A FRANCHISE TO FURNISH AND SUPPLY GAS TO THE GENERAL PUBLIC IN THE CITY OF ANNA, COLLIN COUNTY, TEXAS, FOR THE TRANSPORTING, DELIVERY, SALE, AND DISTRIBUTION OF GAS IN, OUT OF, AND THROUGH SAID MUNICIPALITY FOR ALL PURPOSES; PROVIDING FOR THE PAYMENT OF A FEE OR CHARGE FOR THE USE OF THE STREETS, ALLEYS, AND PUBLIC WAYS; AND PROVIDING THAT IT SHALL BE IN LIEU OF OTHER FEES AND CHARGES, EXCEPTING AD VALOREM TAXES; AND REPEALING ALL PREVIOUS GAS FRANCHISE ORDINANCES. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS: SECTION 1: That the City of Anna, Texas, hereinafter called "City", hereby grants to Lone Star Gas Company, a Division of ENSERCH CORPORATION, hereinafter called "Company," its successors and assigns, consent to use and occupy the present and future streets, alleys, highways, public places, public thoroughfares, and grounds of City for the purpose of laying, maintaining, constructing, operating, and replacing therein and thereon pipelines and all other appurtenant equipment needed and necessary to deliver gas in, out of, and through said City and to sell gas to persons, firms, and corporations, including all the general public, within the City corporate limits, said consent being granted for a term of twenty-five (25) years from and after the date of the final passage and approval of this ordinance. SECTION 2: Company shall lay, maintain, construct, operate, and replace its pipes, mains, laterals, and other equipment so as to interfere as little as possible with traffic and shall promptly clean up and restore to approximate original condition all thoroughfares and other surfaces which it may disturb. The location of all mains, pipes, laterals, and other appurtenant equipment shall be fixed under the supervision of the City or an authorized agent appointed by said City. When the Company is required to relocate its mains, laterals, and other facilities to accommodate construction, and the relocation is the result of construction or improvement to the Federal -Aid System (or any successor thereto), and Company is eligible for reimbursement for its costs and expenses incurred as a result of such construction and improvement from the Federal Government, the County Government, or the State of Texas, as permitted by law pursuant to any reimbursement program, and City requests reimbursement for costs and expenses incurred as a result of such construction or improvement, Company costs and expenses shall be included within any such application for reimbursement, provided that Company submits the appropriate documentation to City prior to such application. City shall make a reasonable effort to provide sufficient notice to the Company to allow the submittal of appropriate cost information to the City. SECTION 3: When Company shall make or cause to be made excavations or shall place obstructions in any street, alley, or other public place, the public shall be protected by barriers and lights placed, erected, and maintained by Company; and in the event of injury to any person or damage to any property by reason of Company's construction, operation, or maintenance of the gas distribution plant or system of Company, Company shall indemnify and keep harmless City from any and all liability in connection therewith. SECTION 4: In addition to the rates charged for gas supplied, Company may make and enforce reasonable charges, rules and regulations for service rendered in the conduct of its business including a charge for services rendered in the inauguration of natural gas service, and may require, before furnishing service, the execution of a contract therefor. Company shall have the right to contract with each customer with reference to the installation of, and payment for, any and all of the gas piping from the connection thereof with the Company's main in the streets or alleys to and throughout the customer's premises. Company shall own, operate and maintain all service lines, which are defined as the supply lines extending from the Company's main to the customer's meter where gas is measured by Company. The customer shall own, operate, and maintain all yard lines and house piping. Yard lines are defined as the underground supply lines extending from the point of connection with Company's customer meter to the point of connection with customer's house piping. SECTION 5: Company shall not be required to extend mains on any street more than one hundred feet (100') for any one customer of gas; provided that no extension of mains is required if the customer will not use gas for space heating and water heating, or the equivalent load, at a minimum. SECTION 6: Company shall be entitled to require from each and every, customer of gas, before gas service is commenced, a deposit in an amount calculated pursuant to the Company's Quality of Service Rules as may be in effect during the term of this franchise. Said deposit shall be retained and refunded in accordance with such Quality of Service Rules and shall bear interest, as provided in Tex. Rev. Civ. Stat. Ann. art. 1440a (Vernon Supp. 1991) as it may be amended from time to time. Company shall be entitled to apply said deposit, with accrued interest, to any indebtedness owed Company by the customer making the deposit. SECTION 7: The rights, privileges, and franchises granted by this ordinance are not to be considered exclusive, and City hereby expressly reserves the right to grant, at any time, like privileges, rights, and franchises as it may see fit to any other person or corporation for the purpose of furnishing gas for light, heat, and power to and for City and E the inhabitants thereof. Provided, however, City shall not grant more favorable conditions, including franchise fee, to any other gas utility franchisee than are herein granted to Company. SECTION 8: Company, its successors and assigns, agrees to pay and City agrees to accept, on or before the 1st day of November, 1992, and on or before the same day of each succeeding year during the life of this franchise, the last payment being made on the 1st day of November, 2016, a sum of money which shall be equivalent to two percent (2%) of the gross receipts received by Company from the sale of gas to its residential and commercial customers within the corporate limits of said City (expressly excluding governmental accounts and receipts derived from sales to all other classes of customers in said City) during the preceding calendar year, which annual payment shall be for the rights and privileges herein granted to Company, including expressly, without limitation, the right to use the streets, alleys, and public ways of said City. The initial payment for the rights and privileges herein provided shall be for the period January 1 through December 31, 1992, and each succeeding payment shall be for the period January 1 through December 31 of the respective year in which the payment is made. And 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, licenses, fees, street or alley rentals 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. In order to determine the gross receipts received by Company from the sale of gas to residential and commercial customers within the corporate limits of City, Company agrees that on the same date that payments are made, as provided in the preceding paragraph of this Section 8, it will file with the City Clerk a sworn report showing the gross receipts received from the sale of gas to its residential and commercial customers within said corporate limits 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 said City to ascertain the correctness of the sworn reports agreed to be filed herein. SECTION 9: When this franchise ordinance shall have become effective, all previous ordinances of said City granting franchises for gas distribution purposes which were held by Company shall be automatically cancelled and annulled, and shall be of no further force and effect. SECTION 10: Company shall file its written acceptance of this franchise ordinance within sixty (60) days after its final passage and approval by said City. SECTION 11: This ordinance shall become effective on the 18th day of October, 1992, provided that on or prior to such date the City Council shall have finally passed and approved this ordinance. PASSED AND APPROVED on this the day of A. D. 19 15,1 Z.. ATTEST: y Secretary STATE OF TEXAS § COUNTY OF COLLIN § CITY OF ANNA § Mayor City of Anna, Texas I, a 2-a w 6-e-� /--; City Secretary of the City of Anna, Collin County, Texas, do hereby certify that the above and foregoing is a true and correct copy of an ordinance passed by the City Council of the City of Anna, Texas, at a session, held on the Llday of ,) L)Q, 19Cy2 as it appears of record in the Minutes in Book , page WITNESS MY HAND AND SEAL OF SAID CITY, this the / day of A. D. 19 132- .19 4Secretary City of Anna, Texas EXTRACT FROM THE MINUTES OF THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS The City Council of the City of Anna, Collin County, Texas, convened in L�a j 1,5f session on the _ 1 q day of �"G „, oa_,, at �;�o M., with the following persons present: Mayor: 2 L 4-�.� Council Members: A©-15) /.�e�Ny /yJ= lrrrr Absent: '4 e©.t.(2'Al aI-lea.; A quorum being present, came on to be read and considered Ordinance No. CJ /-1903 granting to Lone Star Gas Company, a Division of ENSERCH CORPORATION, a Texas corporation, a franchise to furnish and supply natural gas to the general public in the City of Anna, Texas, for the transporting, delivery, sale and distribution of gasln, out of, and through said municipality for all purposes. On motion made by and seconded by 116Z ",A2 ZY0 75191-r / which carried unanimously, the City Council voted the passage of the Ordinance and to record same at length in these minutes. 5 STATE OF TEXAS § COUNTY OF COLLIN § CITY OF ANNA § I, ,b ��,' ,e l�L��n �a/'�-�-city Secretary of the City of Anna, Texas, do hereby certify that the above and foregoing is a true and correct copy of the proceedings of the City Council of the City of Anna, Texas, at session, held on the day of19)2 , in connection with the passage and adoption of T Ordinance No. granting a franchise to Lone Star Gas Company and that the same is of record in Book , page of the Minutes of the City Council. WITNESS MY HAND AND SEAL OF SAID CITY, this the day of A.D. 19� 9 Secretary City of Anna, Texas PW 14W_ STATE OF TEXAS § COUNTY OF DALLAS § WHEREAS, there was finally passed and approved on January 14, 1992, Ordinance No. 91-003 granting to Lone Star Gas Company, a Division of ENSERCH CORPORATION, a corporation, its successors and assigns, a franchise to furnish and supply gas to the general public in the City of Anna, Collin County, Texas, for the transporting, delivery, sale and distribution of gas in, out of and through said municipality for all purposes, which is recorded in the Minutes of the City Council of said City; and WHEREAS, Section 10 of said ordinance provides as follows: "SECTION 10: Company shall file its written acceptance of this franchise ordinance within sixty (60) days after its final passage and approval by said City." AND, WHEREAS, it is the desire of Lone Star Gas Company, a Division of ENSERCH CORPORATION, the holder of the rights, privileges and grants under the aforesaid franchise ordinance, to comply with the above -quoted provisions of Section 10 thereof. NOW, THEREFORE, premises considered, Lone Star Gas Company, a Division of ENSERCH CORPORATION, acting by and through its duly authorized officers, and within the time prescribed by Section 10 quoted above, does hereby agree to and accept the franchise granted to it by the above-described ordinance, in accordance with its terms, provisions, conditions and requirements and subject to the stipulations and agreements therein contained. WITNESS THE EXECUTION HEREOF, on this the 5_ day of ATTEST: Ass We-critary' STATE OF TEXAS § COUNTY OF COLLIN § CITY OF ANNA § LONE STAR GAS COMPANY A DIVISION OF ENSERCH CORPORATION V c ev President I, �,�,,� �,,.,b �,�t� City Secretary of the City of Anna, Texas, do hereby certify that the above and foregoing is a true and correct copy of a formal acceptance of a franchise ordinance finally passed and approved by said City on January 14, 1992, and of record in the Minutes of the City; and I do further certify that said acceptance has been duly presented to the City Council and filed in connection with and as a part of said franchise ordinance. OF WHICH, witness my official signature and the seal of said City on this the /a- day of /� 19-/l d // , 19 �;0 . Q2:�_X� 6-1 City Secretary City of Anna, Texas E