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:
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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