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08-050 - OORDINANCE NO. 08-050 AN ORDINANCE AMENDING THE EXISTING GAS FRANCHISE BETWEEN THE TOWN OF PROSPER AND ATMOS ENERGY CORPORATION TO PROVIDE FOR A DIFFERENT CONSIDERATION; PROVIDING AN EFFECTIVE DATE; PROVIDING FOR ACCEPTANCE BY ATMOS ENERGY CORPORATION; AND FINDING AND DETERMINING THAT THE MEETING AT WHICH THIS ORDINANCE IS PASSED IS OPEN TO THE PUBLIC AS REQUIRED BY LAW. WHEREAS, Atmos Energy Corporation ("Company") is engaged in the business of furnishing and supplying gas to the general public in the Town of Prosper, 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 duly passed by the governing body of the Town and duly accepted by Company or its predecessor in interest; and WHEREAS, the Town of Prosper and Company desire to amend said franchise ordinance to provide for a different consideration; NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS: that SECTION 1: The consideration' payable by Company for the rights and privileges granted to Company by the franchise ordinance duly passed by the governing body of this Town and accepted by Company or its predecessor in interest is hereby changed to be five percent (5%) of the Gross Revenues, as defined in the franchise ordinance. SECTION 2: Franchise payments shall be made on the dates prescribed in the existing franchise and shall be for the rights and privileges as set forth in the existing franchise. SECTION 3: This ordinance shall take effect on May 1, 2008. Company shall, within thirty (30) days from the receipt of this ordinance, file its written acceptance of this ordinance with the Office of the Town Secretary in substantially the following form: To the Honorable Mayor and Town Council: Atmos Energy Corporation, acting by and through the undersigned authori i eby accepts in all respects, on this the i day of , , Ordinance No. 08-050 amending the current gas franchise between the Town and Atmos Energy Corporation. Atmos Energy Corporation By v ice President, id -Tex Division SECTION 4: 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 Town shall remain in full force and effect. SECTION 5: The Town shall provide a copy of this Ordinance to Mr. David Park, VP of Rates and Regulatory Affairs, Atmos Energy Corp., 5420 LBJ Freeway, Suite 1800, Dallas, Texas 75240, no later than ten (10) business days after its final passage and approval. SECTION 6 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 TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS, this the 27th day of May, 2008, at which meeting a quorum was present and voting. 4�arles Niswanger, �May OF PROap so�e� � flop a° + r +r 00 00 r e d v i O �� pe oo F b 11r XpS ,®��� Prosper Gas Franchise FRANCHISE AMENDMENTS TOWN OF PROSPER ORDINANCE NO. 02-43 AN ORDINANCE AMENDING THE EXISTING GAS FRANCHISE BETWEEN THE TOWN OF PROSPER 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 AN EFFECTIVE DATE; 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. 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 of Prosper (hereinafter called "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 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 PROSPER, TEXAS: that SECTION 1: The existing gas franchise ordinance between the Town 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 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. 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 located 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 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 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. (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 Town's right of way. Page 2 of 5 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. (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 Page 3 of 5 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 party other than TXU Gas the use of its facilities within the Town's public rights -of -way provided: (i) TXU Gas first notifies 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. 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 Town 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 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 Town Secretary in substantially the following form: To the Honorable Mayor and Town 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 U day of L&/6%?J 20 G,;), , Ordinance No.02-43, amending the current gas franchise between the Town and TXU Gas and the same shall constitute and be a binding contractual obligation of TXU Gas and the Town. TXU Gas Distribution A division of TXU Gas Company B Vid 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, Page 4 of 5 place and purpose of said meeting was given as required. PASSED AND APPROVED BY THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS , this the loth day of September, 2002, at which meeting a quorum was present and voting.. vyvor m Dunmire ATTEST: Vow Secretary p Amber Phi i s APPROVED AS TO FORM: Town Attorney Page 5 of 5 ORIGINAL FRANCHISE ORDINANCE NO: 97 —19 AN ORDINANCE GRANTING TO LONE STAR GAS COMPANY, A DIVISION OF ENSERCH CORPORATION, A TEXAS CORPORATION, ITS SUCCESSORS AND ASSIGNS, A FRANCHISE TO CONSTRUCT, MAINTAIN, AND OPERATE PIPELINES AND EQUIPMENT IN THE CITY OF PROSPER, COLLIN COUNTY, TEXAS, FOR THE TRANSPORTING, DELIVERY, SALE, AND DISTRIBUTION OF GAS IN, OUT OF, AND THROUGH SAID CITY FOR ALL PURPOSES; PROVIDING FOR THE PAYMENT OF A FEE OR CHARGE FOR THE USE OF THE PUBLIC RIGHTS -OF -WAYS; AND PROVIDING THAT SUCH FEE 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 COMMISSION OF THE CITY OF PROSPER, TEXAS: SECTIONI: That the City of Prosper, 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, hereinafter referred to as "Public Rights -of - Way," for the purpose of laying, maintaining, constructing, protecting, operating, and replacing therein and thereon pipelines and all other appurtenant equipment to deliver, transport, and distribute gas in, out of, and through City for persons, firms, and corporations, including all the general public, and to sell gas to persons, firms, and corporations, including all the general public, within the City corporate limits, as such limits may be amended from time to time during the term of this ordinance, said consent being granted for a term of twenty-five (25) years from and after the effective date of this ordinance. SECTION 2: Company shall lay, maintain, construct, operate, and replace its pipes, mains, laterals, and other equipment to minimize interference with traffic and shall promptly clean up and restore to approximate original condition all Public Rights -of -Way which it may disturb. When Company makes, or causes to be made, excavations, or places, or causes to be placed, obstructions in any Public Rights -of -Way, Company shall place, erect, and maintain barriers and lights to identify the location of such excavations or obstructions. In determining the location of Company's pipeline within City, Company shall minimize interference with then existing underground structures of City or other utility franchisees. Likewise, in determining the location of the facilities of the City and other utility franchisees within City, City shall minimize interference with then existing facilities of Company and shall require other utility franchisees to minimize interference with existing facilities of Company. In the event of a conflict between the location of the facilities of Company and the location of the facilities of City or other utility franchisees within Public Rights -of -Way that cannot otherwise be resolved, City or an authorized agent of City shall resolve the conflict and determine the location of the respective facilities. Company shall not be required to obtain street cutting, street excavation or other special permits related to excavations in Public Rights -of -Way in connection with Company's operations in Public Rights -of -Way. When the Company is required by City to remove or relocate its mains, laterals, and other facilities to accommodate construction of streets and alleys by City, and Company is eligible under federal, state, county, local or other programs for reimbursement of costs and expenses incurred by Nov it 97 Franchise\14H-0, 1996 Company as a result of such removal or relocation, and such reimbursement is required to be handled through City, Company costs and expenses shall be included in any application by City for reimbursement, if Company submits its cost and expense documentation to City prior to the filing of the application. City shall provide reasonable notice to Company of the deadline for Company to submit documentation of the costs and expenses of such relocation to City. If the Company is required by City to remove or relocate its mains, laterals, or other facilities for any reason other than the construction of streets and alleys by City, Company shall be entitled to reimbursement from City or others of the cost and expense of such removal or relocation. If City abandons any Public Right -of -Way in which Company has facilities, such abandonment shall be conditioned on Company's right to maintain its use of the former Public Right -of -Way and on the obligation of the party to whom the Public Right -of -Way is abandoned reimbursing Company for all removal or relocation expenses if Company agrees to the removal or relocation of its facilities following abandonment of the Public Right -of -Way. If the party to whom the Public Right -of -Way is abandoned requests the Company to remove or relocate its facilities and Company agrees to such removal or relocation, such removal or relocation shall be done within a reasonable time at the expense of the party requesting the removal or relocation. If relocation cannot practically be made to another Public Right -of -Way, the expense of any right-of-way acquisition shall be considered a relocation expense to be reimbursed by the party requesting the relocation. SECTION 3: In the event of injury to any person or damage to any property by reason of Company's construction, operation, maintenance, or replacement of Company's pipeline system within Public Rights -of -Way, Company shall indemnify and keep harmless City from any and all liability in connection therewith, except to the extent such injury or damage is attributable to City's negligent act or omission. In the event of injury to any person or damage to any property by reason of City's construction, operation, or maintenance of the Public Rights -of -Way and facilities of City within the Public Rights -of -Way, City shall indemnify and keep harmless Company from any and all liability in connection therewith, except to the extent such injury or damage is attributable to Company's negligent act or omission. 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. Company may require, before furnishing service, the execution of a contract for such service. 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 Public Rights -of -Way 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 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 be required, at its own expense, to extend distribution mains in any Public Rights -of -Way up to one hundred feet (100) for any one residential customer only if such customer, at a minimum, uses gas for unsupplemented space heating and water heating. Company shall not be required to extend transmission mains in any Public Rights -of -Way within City or to make a tap Franchise\July 10, 1996 2 on any transmission main within City unless Company agrees to such extension by a written agreement between Company and a customer. SECTION 6: Company shall be entitled to require from each and every customer of gas, before gas service is commenced or reinstated, 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. 14.40a 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 transporting, delivering, distributing, or selling gas to and for City and the inhabitants thereof. Provided, however, in the event City grants franchise conditions to another gas franchisee that are more favorable to such gas franchisee than the terms of this franchise are to Company, City shall approve amendments to this franchise that provide Company with the same favorable terms to be effective on the effective date of the franchise granted to such other gas franchisee. SECTION 8: Company, its successors and assigns, agrees to pay and City agrees to accept, on or before the 1st day of March, 1998, 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 March, 2022, 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 receipts from governmental accounts and receipts from other classes of customers in said City) during the preceding calendar year, which annual payments shall be for the rights and privileges herein granted to Company, including expressly, without limitation, the right to use the Public Rights -of -Way of City. The initial payment for the rights and privileges herein provided shall be for the period January 1 through December 31, 1998, and each succeeding payment shall be for the calendar year in which the payment is made. And it is also expressly agreed that the aforesaid payments shall be in lieu of any and all other and additional occupation taxes, easement, franchise taxes or charges (whether levied as an ad valorem, special, or other character of tax or charge), municipal license, permit, and inspection fees, bonds, 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 from Company or Company's agents, 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 aforesaid. Company agrees that on the same date that payments are made, as provided in this Section 8, it will file with the City Secretary a report showing the gross receipts received by the Company from the sale of gas to its residential and commercial customers within City during the calendar year Franchise\July 10, 1996 3 preceding the date of payment. City may, if it sees fit, have the books and records of Company examined by a representative of City to ascertain the correctness of the reports agreed to be filed herein. SECTION 9: When this franchise ordinance becomes effective, all previous ordinances of City granting franchises for gas delivery purposes which were held by Company shall be automatically canceled and annulled, and shall be of no further force and effect. SECTION 10: In order to accept this franchise, Company must file with the City Secretary its written acceptance of this franchise ordinance after its final passage and approval by City. If written acceptance of this franchise ordinance is not filed by Company after its final passage and approval by said City, the franchise ordinance shall be rendered null and void. SECTION 11: If Company accepts this ordinance, by the filing of its written acceptance, this ordinance shall become effective on November 13, 1997. PASSED AND APPROVED on this the 11 th day of NOVEMBER , A.D. **K ATTEST: City Secre Franchise\July 10, 1996 4 f) M yor City of Prosper, Texas STATE OF TEXAS § COUNTY OF COLLIN § CITY OF PROSPER § I, Q u T R T F V T n r K S ob , City Secretary of the City of Prosper, Collin County; Texas, do hereby certify that the above and foregoing is a true and correct copy of an ordinance passed by the City Commission of the City of Prosper, Texas, at a n -Pr-TTT r n session, held on the 11th day of NnVFMRF'R AR as it appears of record in the Minutes in Book 5 , page 17 WITNESS MY HAND AND SEAL OF SAID CITY, this the 12 th day of NnVFMRFR , A. DXIM. 1997 ACitySccreta ; City of Prosper, Texas Franchise\July 10, 1996 5 EXTRACT FROM THE MINUTES OF THE CITY COMMISSION OF THE CITY OF PROSPER, TEXAS The CITY COMMISSION of the City of Prosper, Collin County, Texas, convened in REGULAR session on the 1 +I, day of 1997 DM, at :7 . n p1M., with the following persons present: Mayor: CITY COMMISSION Members: Absent: R AT PN RnYFR GRADY SMOTHERMON JIM DUNMIRE LARRY TRACEY BILL NISWANGER A quorum being present, came on to be read and considered Ordinance No. 9a _ j 9 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 Prosper, Texas, for the transporting, delivery, sale and distribution of gas in, out of, and through said municipality for all purposes. On motion made by RALPH BOYER and seconded by JIM DUNMIRE which carried unanimously, the CITY COMMISSION voted the passage of the Ordinance and to record same at length in these minutes. Franchise\July 10, 1996 6 STATE OF TEXAS § COUNTY OF COLLIN § CITY OF PROSPER § I, ST4TRT FY TACKSnm , City Secretary of the City of Prosper, Texas, do hereby certify that the above and foregoing is a true and correct copy of the proceedings of the City Commission of the City of Prosper, Texas, at a u�r,�?� session, held on the 1 1 t.h day of NOVEMBER 1, in connection with the passage and adoption of Ordinance No. 9 7 —1 9 granting a franchise to Lone Star Gas Company and that the same is of record in Book 5 , page 17 of the Minutes of the City Commission. WITNESS MY HAND AND SEAL OF SAID CITY, this the ? i- b day of mnyRmRFR I A•DKJCW*. 1997. 4city"'cretaryy City of Prosper, Texas Franchise\ July 10, 1996 7