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HomeMy WebLinkAboutOrd 423 Amending Electric Franchise FeesTOWN OF WESTLAKE ORDINANCE NO. 423 AN ORDINANCE AMENDING ORDINANCE NO. 399 STATING THE STATUTORY AUTHORITY FOR IMPOSING THE STATUTORY CHARGE PURSUANT TO TEXAS TAX CODE § 182.025 (a) AND (c) AND RELATING TO ELECTRIC FRANCHISE FEE PAYMENTS AS CALCULATED AND PAID UNDER TEXAS UTILITY CODE § 38.008, AS APPLICABLE, FOR EXISTING FRANCHISEES AND ELECTRIC UTILITIES IN THE TOWN; CONTAINING FINDINGS AND OTHER PROVISIONS RELATING TO THE FOREGOING SUBJECT; PROVIDING AN EFFECTIVE DATE; AND DECLARING AN EMERGENCY. WHEREAS, Texas Tax Code § 182.025 (a) authorizes the Town of Westlake ("Town") to make a reasonable charge upon an electric utility, as defined in the Utility Code § 31.002, and which includes an electric cooperative, such as Tri -County Electric Cooperative, which uses the rights -of -ways in the Town in the course of it's business; and WHEREAS, the Texas Tax Code § 182.025 (c) establishes that such charge should not exceed the charge allowed in the Utility Code § 33.008, which is to be equal to the franchise fee charged as of 1998; and WHEREAS, in September 2001, the Town adopted Ordinance No. 399 imposing the statutory charge on Tri -County Electric Cooperative, effective January 1, 2002; and WHEREAS, as Ordinance No.399 imposing the statutory charge, does not make a. specifically reference to Texas Tax Code § 182.025, but only refers to the Utility Code § 33.008; and WHEREAS, to expressly state the specific statutory authority by which the Town was acting in adopting Ordinance No.399, the Town is adopting this Ordinance, to augment Ordinance No. 399; and WHEREAS, the Town on or about April 1, 1991, by Ordinance No. 186 entered in a franchise ("Franchise") with Tri -County Electric Cooperative ("Electric Utility" or "Transmission and Distribution Utility") which granted them the right to use the public rights-of- way to deliver electricity in the Town; and WHEREAS, Section 6 of the Franchise provides that the Town may collect a fee equal to "3% of it's [Tri -County Electric Cooperative] gross revenue received from the sale of electric power and energy" as a franchise fee from the electric utility for use of the public rights-of-way in the Town and the Town has collected such a fee since the Franchise was entered into including in 1998; and WHEREAS, Texas Utility Code § 33.008(a) provides that, "a municipality may impose on an electric utility, [or] transmission and distribution utility ... that provides distribution service within the municipality a reasonable charge as specified in Subsection (b) for the use of a municipal street, alley, or public way to deliver electricity to a retail customer."; WHEREAS, Texas Utility Code § 33.008(b) provides in part that "[i]f a municipality collected a charge or fee for a franchise to use a municipal street, alley, or public way before ... [December 31, 2001], the municipality, after [December 31, 2001] ... is entitled to collect from each electric utility, [or] transmission and distribution utility ... that uses the municipality's streets, alleys, or public ways to provide distribution service a charge based on each kilowatt hour of electricity delivered by the utility to each retail customer whose consuming facility's point of delivery is located within the municipality's boundaries."; WHEREAS, Texas Utility Code § 33.008(b) further provides that "[t]he charge imposed shall be equal to the total electric franchise fee revenue due the municipality from electric utilities ... for calendar year 1998 divided by the total kilowatt hours delivered during 1998 by the ... electric utility ... to retail customers whose consuming facilities' points of delivery were located within the municipality's boundaries." ("KWH Charge") and the franchise fee in the Franchise was "3% of it's [Tri -County Electric Cooperative] gross revenue received from the sale of electric power and energy" in 1998, as established in the 1991 Franchise. WHEREAS, § 33.008(b) further provides "[t]he compensation a municipality may collect from each electric utility, [or] transmission and distribution utility . . . providing distribution service shall be equal to the charge per kilowatt hour determined for 1998 multiplied times the number of kilowatt hours delivered within the municipality's boundaries."; WHEREAS, the Town Council finds and determines that the Town did collect a franchise fee before December 31, 2001 and desires to impose and collect the charge authorized by Texas Tax Code § 182.025 (a) and (c) and by Texas Utility Code § 33.008, as applicable, from the Electric Utility or Transmission and Distribution Utility in the Town; NOW THEREFORE BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE TOWN OF WESTLAKE, TEXAS; SECTION 1: That the findings contained in the preamble of this Ordinance are determined to be true and correct and are hereby adopted. SECTION 2: Pursuant to the Texas Tax Code § 182.025 (a) and (c) and, as applicable, Texas Utility Code § 33.008(a) and § 33.008(b), the Town imposes on the Electric Utility and/or Transmission and Distribution Utility, that uses the public rights of way and /or provides distribution service within the municipalities' boundaries, a statutory charge at the maximum rate allowed by the Texas Tax Code § 182.025 (a) and (c), which is 3% of the gross receipts, as set out in the Franchise, or a KWH charge as authorized by Texas Utility Code § 33.008, as applicable. Such charge shall be paid for each calendar quarter, on the last day of the month following the end of the calendar quarter, as is provided for in the Franchise. SECTION 3: Upon payment of the statutory charge as authorized by the Texas Tax Code under § 182.025 (a) and (c), or per kilowatt hour charge, as authorized by the Texas Utility Code, § 33.008, as applicable, the Electric Utility or Transmission and Distribution Utility shall also file a report with the Town evidencing the calculation of the statutory charge or kilowatt hours, as applicable, delivered within the Town during the applicable period, and other reasonable information as requested in writing by the Town to verify the accuracy of that Report. SECTION 4: Violations of Ordinance. It shall be a violation of this Ordinance for the Electric Utility to knowingly make a material misrepresentation of any information required to be reported under this ordinance. SECTION 5: Severability. if any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held invalid or unconstitutional by any court or administrative agency of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portions thereof. SECTION 6: Effective date. This Ordinance shall tape effect upon adoption as to the statutory charge being imposed under the Texas Tax Code § 182.025 (a) and (c) and as to the KWH charge it should begin to accrue as applicable under the Utility Code. PASSED AND APROVED THIS 12TH DAY OF AUGUST, 2002. ATTEST: 't ? '41 Ginger Crosswy, Town Secretary APPROVED AS TO LEGAL FORM: L. Sftiton LowN Town Scott Bradfey, Mayor Trent O. Petty, Town Manger PUBLISHER of the AHiance Region V %i'j. of circulg-tio-t v,4jc4f 'tvs, SUBSCRIBED AND SWORN TO before me on the 1/! day of 1 CHRISTIN SAYE Notary Public STATE 0 NOTARY PUBLIC, STATE OF TEXAS M . CA rn m Pe My Corrunission Expires: OV'- 0