HomeMy WebLinkAboutOrdinances (O-08-1701)-12/02/2008ORDINANCE 0-08-1701
AN ORDINANCE GRANTING TO ATMOS ENERGY CORPORATION, A TEXAS AND
VIRGINIA CORPORATION, ITS SUCCESSORS AND ASSIGNS, A FRANCHISE TO
FURNISH, TRANSPORT AND SUPPLY GAS TO THE GENERAL PUBLIC IN THE
CITY OF COLLEYVILLE, TARRANT 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;
REPEALING ALL PREVIOUS ATMOS ENERGY GAS FRANCHISE ORDINANCES;
PROVIDING THAT IT SHALL BE IN LIEU OF OTHER FEES AND CHARGES,
EXCEPTING AD VALOREM TAXES; PRESCRIBING THE TERMS, CONDITIONS,
OBLIGATIONS AND LIMITATIONS UNDER WHICH SUCH FRANCHISE SHALL BE
EXERCISED; PROVIDING A MOST FAVORED NATIONS CLAUSE, AND A
SEVERABILITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE
WHEREAS, the City of Colleyville is the owner of valuable rights of way which have
been utilized by Atmos Energy Corporation and its predecessors pursuant
to a franchise issued by the City; and
WHEREAS, the City of Colleyville is legally authorized to regulate and franchise the
use of City owned rights-of-way; and
WHEREAS, all legal prerequisites for the passage of this ordinance have been met,
including but not limited to the requirements of the Texas Open Meetings
Act and the City Charter; and
WHEREAS, City Council has found that the passage of this ordinance serves the best
interests of the health, safety and welfare of the public.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
COLLEYVILLE, TEXAS:
Sec. 1. THAT all matters stated herein are found to be true and correct and are
incorporated herein by reference as if copied in their entirety.
Sec. 2. Grant of Authority/Length of Franchise/Term and Conditions
(A) Grant of Authority. The City of Colleyville, Texas, herein after called
"City," hereby grants to Atmos Energy Corporation, hereinafter
called "Atmos Energy" or "Company," its successors and assigns,
consent to use and occupy the present and future public rights-of-
way of the City for the purpose of laying, maintaining, constructing,
protecting, operating, and replacing the system needed and
necessary to deliver, transport and distribute gas in, out of, and
through City and to sell gas to persons, firms, and corporations,
including all the general public, within the City's corporate limits.
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Sec. 3
(B) Length of Franchise. Said privilege and license being granted by
this ordinance is for a term ending December 31, 2023.
(C) Terms and Conditions. The provisions set forth in this ordinance
represent the terms and conditions under which the Company shall
construct, operate, and maintain the system within the City,
hereinafter sometimes referred to as the "franchise." In granting this
franchise, the City does not in any manner surrender or waive its
regulatory or other rights and powers under and by virtue of the
Constitution and statutes of the State of Texas as the same may be
amended, nor any of its rights and powers under or by virtue of
present or future generally applicable ordinances of the City.
Company, by its acceptance of this franchise, agrees that all such
lawful regulatory powers and rights as the same may be from time
to time vested in the City shall be in full force and effect and subject
to the exercise thereof by the City at any time.
Definitions
For the purposes of this ordinance, the following terms, phrases, words
and their derivations shall have the meanings given herein. When not
inconsistent with the context, words in the present tense include the
future, words in the plural number include the singular number and words
in the singular number include the plural number. The word "shall" is
always mandatory and not merely directory.
(A) "City" shall mean the City of Colleyville, Texas.
(B) "Company" shall mean Atmos Energy Corporation, its successors
and assigns, but does not include an affiliate, which shall have no
right or privilege granted hereunder except through succession or
assignment in accordance with Section 6 entitled "No Third Party
Beneficiaries."
(C) "City Manager" means City's manager, or designee.
(D) "Gross Revenues" shall mean all revenue derived or received,
directly or indirectly, from the sale of gas to all classes of customers
(excluding gas sold to another gas utility in City for resale to its
customers within City) within the corporate limits of City.
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(1) "Gross revenues" shall include:
(a) revenues derived from the following `miscellaneous charges':
i. 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;
(c) gross receipts fees;
(d) all revenues derived by Company from the transportation of
gas through the system of Company within the City to
customers located within the City (excluding any gas
transported to another gas utility in City for resale to its
customers within City); and
(e) the value of gas transported by Company for transport
customers through the system of Company located in the
City's public rights-of-way ("Third Party Sales") (excluding
the value of any gas transported to another gas utility in City
for resale to its customers within City), with the value of such
gas to be established by utilizing Company's monthly
weighted average cost of gas charged to industrial
customers in the Mid-Tex division, as reasonably near the
time that the transportation service is performed.
(2) "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; and
(b) sales taxes; and
(c) any interest income earned by the Company; and
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(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 public right-of
way
(E) "Person" shall mean any natural person, or any association, firm,
partnership, joint venture, corporation, or other legally recognized
entity, whether for-profit or not-for-profit, but shall not, unless the
context clearly intends otherwise, include the City or any employee,
agent, servant, representative or official of the City.
(F) "Public Right-of-Way" shall mean public streets, alleys, highways,
bridges, public easements, public places, public thoroughfares,
grounds, and sidewalks of the City, as they now exist or may be
hereafter constructed, opened, laid out or extended within the
present limits of the City, or in such territory as may hereafter be
added to, consolidated or annexed to the City.
(G) "System" or "System Facilities" shall mean all of the Company's
pipes, pipelines, gas mains, laterals, feeders, regulators, meters,
fixtures, connections, and all other appurtenant equipment used in
or incident to providing delivery, transportation, distribution, supply
and sales of natural gas for heating, lighting, and power, located in
the public right-of-way within the corporate limits of the City.
(H) "Affiliate" shall mean in relation to the Company, a person that
controls, is controlled by, or is under common control with the
Company. As used in this definition, the term "control" means, with
respect to a person that is a corporation, the ownership, directly or
indirectly, of more than 50% of the voting securities of such person
or, with respect to a person that is not a corporation, the power to
direct the management or policies of such person, whether by
operation of law, by contract or otherwise.
(I) "Transport Customer" shall mean any person for which Company
transports gas through the system of Company within the City's
public rights-of-way for delivery within the City (excluding other gas
utilities in City who resell gas to their customers within the City) .
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Sec. 4. Effect of Other Municipal Franchise Ordinance Fees Accepted and Paid'.
by Company ~I
(A) If Company 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
in the Mid-Tex Division, 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
~~I under this ordinance, then the franchise fee to be paid by Company
~ ~ to City pursuant to this ordinance may, at the election of the City, 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. The
City acknowledges that the exercise of this right is conditioned upon
the City's acceptance of all terms and conditions of the other
municipal franchise in toto. The City may request waiver of certain
terms, and the Company may choose to agree with the waiver.
Sec. 5. Acceptance of Terms of Franchise
(A) The Company shall have sixty (60) days from and after the
passage and approval of this ordinance to file its written
acceptance thereof with the City Secretary. If the Company does
not file such written acceptance of this franchise ordinance, the
franchise ordinance shall be rendered null and void. The effective
date shall be determined in accordance with the requirements of
Section 28, "Effective Date."
(B) At 11:59 P.M. on December 31, 2023, ALL rights, franchises and
privileges herein granted, unless they have already at that time
ceased or been forfeited or extended by mutual agreement while a
new franchise is being negotiated, shall at once cease and
terminate.
Sec. 6. No Third Party Beneficiaries
This franchise is made for the exclusive benefit of the City and the
Company, and nothing herein is intended to, or shall confer any right,
claim, or benefit in favor of any third party.
Sec. 7. Successors and Assigns
No assignment or transfer of this franchise shall be made, in whole or in
part, except in the case of assignment or transfer to an affiliate without
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approval of the City Council of the City. Written notice of said transfer or
assignment to an affiliate shall be provided to the City Manager. The City
will grant such approval unless withheld for good cause, such as:
(1) the failure of the proposed assignee or transferee to agree to
comply with all provisions of this ordinance and such additional
conditions as the City Council may prescribe in order to remedy
existing conditions of non-compliance, or
(2) the failure of the proposed assignee or transferee to provide
assurances reasonably satisfactory to the City Council of its
qualifications, character, the effect of the transfer and such other
matters as the City Council deems relevant. Upon approval, the
rights, privileges and franchise herein granted to Company shall
extend to and include its successors and assigns. The terms,
conditions, provisions, requirements and agreements contained in
this franchise shall be binding upon the successors and assigns of
the Company.
Sec. 8. Compliance With Laws, Charter and Ordinances
This franchise is granted subject to the laws of the United States of
America and its regulatory agencies and commissions and the laws of the
State of Texas, the Colleyville City Charter, as amended, and all other
generally applicable ordinances of the City of Colleyville, not inconsistent
herewith, including, but not limited to, ordinances regulating the use of
public rights-of-way.
Sec. 9. Previous ordinances
When this franchise becomes effective, all gas franchise ordinances and
parts of franchise ordinances applicable to the Company or its
predecessors in interest granted by the City of Colleyville, Texas, are
hereby repealed.
Sec. 10. Notices
Any notices required or desired to be given from one party to the other
party to this ordinance shall be in writing and shall be given and shall be
deemed to have been served and received if:
(1) delivered in person to the address set forth below:
(2) deposited in an official depository under the regular care and
custody of the United States Postal Service located within the
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confines of the United States of America and sent by certified mail,
return receipt requested, and addressed to such party at the
address hereinafter specified; or
(3) delivered to such party by courier receipted delivery. Either party
may designate another address within the confines of the'.
continental United States of America for notice, but until written
notice of such change is actually received by the other party, the
last address of such party designated for notice shall remain such
party's address for notice.
CITY
City Manager
City of Colleyville
100 Main Street
i Colleyville, Texas 76244
COMPANY
Manager of Public Affairs
Atmos Energy Corp.,
Mid-Tex Division
800 E. Border Street
Arlington, Texas 76010
With a copy to:
Matthew Boyle
City Attorney
Boyle and Lowry, LLP
4201 Wingren, Suite 108
Irving, Texas 75062
Sec. 11. Paragraph Headings, Construction
The paragraph headings contained in this ordinance are for convenience
only and shall in no way enlarge or limit the scope or meaning of the
various and several paragraphs hereof. Both parties have participated in
the preparation of this ordinance and this ordinance shall not be construed
either more or less strongly against or for either party.
Sec. 12. Conditions of Occupancy
(A) All construction and the work done by Company, and the operation
of its business, under and by virtue of this ordinance, shall be in
conformance with the ordinances, rules and regulations now in
force and that may hereafter be adopted by the City relating to the
use of its public rights-of-way. This franchise ordinance shall in no
way affect or impair the rights, obligations or remedies of the
parties under the Texas Utilities Code, or other state or federal law.
(B) If the City believes that Company has failed to comply with any
operational or maintenance standards as required by this franchise
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ordinance, City shall give the Company written notice of such
failure to comply. Company shall have the opportunity to cure such
failure during a period not to exceed five (5) working days from
receipt of the written notice. If the Company fails to cure the alleged
failure to comply within the prescribed time period, the Company's
alleged failure to comply shall be heard at a public meeting of the
City Council. The Company shall be given written notice of the
public meeting no later than five (5) working days prior to the
posting date of the agenda for the City Council meeting at which
such alleged failure is scheduled to be considered by the City
Council. The notice to the Company shall include a list of the
failures complained of. Company shall have an opportunity to
address the City Council at such public meeting. Commencing five
(5) calendar days following the adoption of a resolution or an
ordinance of the City that finds and determines a failure of
Company to comply with operational or maintenance standards as
required by this franchise ordinance, Company may be subject to
termination as outlined in Section 24.
Sec. 13. Relocation of Company Equipment
(A) Whenever by reason of widening or straightening of streets, water
or sewer line projects, or any other public works projects in which
beautification is not the primary purpose of the project (e.g.,
installing or improving storm drains, water lines, sewer lines, etc.), it
shall be deemed necessary by City to remove, alter, change, adapt,
or conform the underground or aboveground system facilities of
Company to another part of the public rights-of-way, such
alterations shall be made by Company at Company's expense in
accordance with ordinances of the City of Colleyville.
(B) 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
to reimburse 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
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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.
Sec. 14. Laying of Lines in Advance of Public Improvements
(A) Whenever the City shall decide to make any public improvements
in any public right-of-way in which mains and pipes already exist or
in which Company may propose to lay its mains or pipes, the
Company will be provided the opportunity, at no expense to the
City, in advance of such public improvements, to repair or replace
such mains or pipes, if defective or inadequate in size, and to lay
service lines, or renew same, if inadequate in size or defective, to
the property lines where buildings are already located.
(B) The Company shall be given written notice of the intention of the
City to make public improvements in any such public right-of-way.
Within one hundred twenty (120) days from receipt of such notice,
the Company, if it has determined a need, shall initiate work and
thereafter proceed in a workmanlike manner to completion of the
necessary work. If the Company should fail to so proceed, and
such street or alley is thereupon paved, except in an emergency or
in response to a request for initiation of new service, the Company
shall for two (2) years thereafter not be allowed to cut such
pavement or excavate in such paved street or alley for any
purpose. All pavement cuts or excavations within the two (2) year
period, except in response to an emergency, shall be performed
only upon written permission of the Director of Public Works under
such terms and conditions as the Director of Public Works may
prescribe. Company shall give notice to the City of emergency
work as soon as possible after the commencement of such work.
Notice shall be given by contacting the City personnel designated
by the City for this purpose.
Sec. 15. Installation of Meters
If a meter is to be installed in or near the public rights-of-way, Company
agrees to discuss with the Public Works Director or his/her delegate the
aesthetics of the meter placement. If the City requires a meter upgrade,
the Company will comply so long as the City reimburses the Company for
the reasonable costs incurred by the Company in changing meters;
provided, however, that in no event shall underground meters be required.
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Sec. 16. Extensions for Customers
Company shall extend distribution mains in any street up to one hundred
(100) feet for any one residential or commercial customer so long as the
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 on any
transmission main within City unless Company agrees to such extension
by a written agreement between Company and a customer.
Sec. 17. Duty to Serve
The Company hereby agrees that it will not arbitrarily refuse to provide
service to .any person that it is economically feasible for the Company to
serve. In the event that a person is refused service, said person may
request a hearing before the City Council of the City or its designee, said
hearing to be held within forty-five days from the date of the request for
hearing. The City Council may order the Company to provide service or
take any other action necessary to bring the Company into compliance
with the intent of the City Council in granting this franchise. The City
Council may render its opinion at its next regular meeting but in no event
shall the City Council be required to act in less than seven (7) days.
Sec. 18. Rates
Company shall furnish reasonably adequate service to the public at
reasonable rates and charges therefore, and Company shall maintain its
system in good order and condition. Such rates shall be established in
accordance with all applicable statutes and ordinances. Company shall
maintain on file with the City copies of its current tariffs, schedules or rates
and charges, customer service provisions and line extension policies. The
rates and charges collected from its customers in the City shall be subject
to revision and change by either the City or Company in the manner
provided by law.
Sec. 19. Payments to the City
(A) In consideration of the privilege and license granted by City to
Company to use and occupy the public rights-of-way in the City for
the conduct of its business, Company, its successors and assigns,
agrees to pay and City agrees to accept such franchise fees in the
amount and manner described herein. Except as provided for in
subsection (B) of this section, such payments shall be made on a
quarterly basis, on or before the forty-fifth (45th) day following the
end of each calendar quarter. The franchise fee shall be a sum of
money that shall be equivalent to five percent (5%) of the gross
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revenues, as defined in the definition section of this franchise, for
the preceding calendar quarter. The initial payment provided under
this franchise shall be due on or before May 15, 2009, for the
period January 1 through March 31, 2009, based on the preceding
calendar quarter. Subsequent payments shall be made on August
15, November 15, February 15, and May 15 of each year during the
term of the franchise. The final payment under this franchise will be
due on or before February 15, 2024 and will be for the calendar
quarter October 1 through December 31, 2023. Payments due
prior to the beginning of the franchise will be paid pursuant to
previous franchise terms.
(B) 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. 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. The initial CIAC franchise fee payment will be due
on or before April 30, 2009, and will be based on the calendar year
January 1 through December 31, 2008. The final payment of
franchise fee amounts based on CIAC will be April 30, 2024, based
on the calendar year ending December 31, 2023.
(C) It is also expressly agreed that the franchise fee payments shall be
in lieu of any and all other and additional occupation taxes,
easement, franchise taxes or charges (whether levied as a 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 that 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 that 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 occupation taxes, licenses, fees, street or alley rentals or
charges, easements or franchise taxes, 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 such occupation taxes,
licenses, charges, fees or rentals.
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(D) If the Company fails to pay when due any payment provided for in
this section, Company shall pay such amount plus interest at the
current prime rate per annum from such due date until payment is'
received by City.
(E) Company may file with the City a tariff or tariff amendment(s) to
provide for the recovery of the franchise fee under this Agreement.
City agrees that:
(1) as a regulatory authority, it will adopt and approve the
ordinance, rates, or tariff which provide for 100%
recovery of such franchise fees as part of Company's
rates;
(2) if City intervenes in any regulatory proceeding before a
federal or state agency in which the recovery of
Company's franchise fees is an issue, City will take an
affirmative position supporting 100% recovery of such
franchise fees by Company; and
(3) in the event of an appeal of any such regulatory
proceeding in which City has intervened, City will take an ~~
affirmative position in any such appeals in support of the
100% recovery of such franchise fees by Company.
(F)
City further 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 Company.
Lease of facilities Within City's Rights-of-Way. Company shall have
the right to lease, license or otherwise grant to a party other than
Company the use of its facilities within the City's public rights-of-'
way provided: ',
(1) Company 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 'i
telephone number of a contact person associated with
such lessee, licensee or user; and ',
(2) Company makes the franchise fee payment due on the
revenues from such lease pursuant to the Section titled
"Payments to the City" of this ordinance. This authority to
lease facilities within City's rights-of-way shall not affect
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any such lessee, licensee or user's obligation, if any, to
pay franchise fees, access line fees, or similar public
right-of-way user fees.
(G) City shall within thirty (30) days of final approval, give Company
notice of annexations and disannexations of territory by the City,
which notice shall include a map and addresses, if known. Upon
receipt of said notice, Company shall promptly initiate a process to
reclassify affected customers into the city limits no later than sixty
(60) days after receipt of notice from the City. The annexed areas
added to the city limits will be included in future franchise fee
payments in accordance with the effective date of the annexation if
notice was timely received from City. Upon request from City,
Company will provide documentation to verify that affected
customers were appropriately reclassified and included for
purposes of calculating franchise fee payments.
Sec. 20. Books and Records
(A) Company agrees that at the time of each quarterly payment,
Company shall also submit to the City a statement showing its
gross revenues for the preceding calendar quarter as defined in the
definition section of this franchise. City shall be entitled to treat
such statement as though it were sworn and signed by an officer of
Company.
(B) City may, if it sees fit, upon reasonable notice to the Company,
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. The Company shall make available to the
auditor such personnel and records as the City may in its
reasonable discretion request in order to complete such audit, and
shall make no charge to the City therefore. The Company shall
assist the City in its review by providing all requested information
no later than fifteen (15) days after receipt of a request. The cost of
the audit shall be borne by the City unless the audit discloses that
the Company has underpaid the franchise fee by 10% or more, in
which case the reasonable costs of the audit shall be reimbursed to
the City by the Company. If such an examination reveals that
Company has underpaid the City, then upon receipt of written
notification from City regarding the existence of such
underpayment, Company shall undertake a review of the City's
claim and if said underpayment is confirmed, remit the amount of
~I
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underpayment to City, including any interest calculated in
accordance with the section titled "Payments to the City" subsection
(D). Should Company determine through examination of its books
and records that City has been overpaid, upon receipt of written
notification from Company regarding the existence of such
overpayment, City shall review Company's claim and if said
overpayment is confirmed, remit the amount of overpayment to
Company.
(C) If, after receiving reasonable notice from the City of the City's intent
to perform an audit as provided herein, the Company fails to
provide data, documents, reports, or information required to be
furnished hereunder to the City, or fails to reasonably cooperate
with the City during an audit conducted under the terms hereunder, ;
the Company shall be liable for payment of a fee as set forth
herein. The City shall give the Company written notice of its intent
to impose a fee and shall provide Company with a period to cure its
failure, such period not to exceed five (5) working days. If the
Company fails to cure the alleged failure within the prescribed time
period, the Company's alleged failure to comply shall be heard at a
public meeting of the City Council. The Company shall be given
written notice of the public meeting no later than five (5) working
days prior to the posting date of the agenda for the City Council
meeting at which such failure is scheduled to be considered by the
City Council. The notice to the Company shall include a list of the
failures complained of. Company shall have an opportunity to
address the City Council at such public meeting. Commencing five
(5) calendar days following the adoption of a resolution or an
ordinance of the City that finds and determines a failure of
Company to comply with the requirements of this Section,
Company may be subject to termination as outlined in Section 24
entitled "Termination."
Sec. 21. Reservation of Rights: General
(A) The City reserves to itself the right and power at all times to
exercise, in the interest of the public and in accordance with state
law, regulation and control of Company's use of the public rights-of-
way to ensure the rendering of efficient public service, and the
maintenance of Company's system in good repair throughout the
term of this franchise.
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(B) The rights, privileges, and franchise 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 for the purpose of furnishing
j gas for light, heat, and power for City and the inhabitants thereof.
Sec. 22
(C) City expressly reserves the right to own and/or operate its own
system for the purpose of transporting, delivering, distributing, or
selling gas to and for the City and inhabitants thereof.
(D) Nothing herein shall impair the right of the City to fix, within
constitutional and statutory limits, a reasonable price to be charged
for natural gas, or to provide and fix a scale of prices for natural '
gas, and other charges, to be charged by Company to residential
consumers, commercial consumers, industrial consumers, or to any
combination of such consumers, within the territorial limits of the
City as same now exists or as such limits may be extended from
time to time hereafter.
Right to Indemnification, Legal Defense and to be Held Harmless
(A) In consideration of the granting of this franchise, Company agrees
to indemnify, defend and hold harmless the City, its officers,
agents, and employees (City and such other persons and entities
being collectively referred to herein as "indemnitees"), from and
against all suits, actions or claims of injury to any person or
persons, or damages to any property brought or made for or on
account of any death, injuries to, or damages received or sustained
by any person or persons or for damage to or loss of property
arising out of, or occasioned by Company's intentional and/or
negligent acts or omissions in connection with Company's
operations.
(B)
The Company's obligation to indemnify indemnitees under this
franchise ordinance shall not extend to claims, losses, and other
matters covered hereunder that are caused or contributed to by the
negligence of one or more indemnitees. In such case the obligation
to indemnify shall be reduced in proportion to the negligence of the
indemnitees. By entering into this franchise ordinance, City does
not consent to suit, waive any governmental immunity available to
the City under Texas law or waive any of the defenses of the
parties under Texas law.
Ordinance 0-08-1701
Page 16 of 19
(C) Except for instances of the City's own negligence, City shall not at
any time be required to pay from its own funds for injury or damage
occurring to any person or property from any cause whatsoever
arising out of Company's construction, reconstruction,
maintenance, repair, use, operation or dismantling of system or
Company's provision of service.
(D) In the event any action or proceeding shall be brought against the
indemnitees by reason of any matter for which the indemnitees are
indemnified hereunder, Company shall, upon notice from any of the
indemnitees, at Company's sole cost and expense, resist and
defend the same with legal counsel selected by Company;
provided, however, that Company shall not admit liability in any
such matter on behalf of the indemnitees without their written
consent and provided further that indemnitees shall not admit
liability for, nor enter into any compromise or settlement of, any
claim for which they are indemnified hereunder, without the prior
written consent of Company. Company's obligation to defend shall
apply regardless of whether City is solely or concurrently negligent.
The indemnitees shall give Company prompt notice of the making
of any claim or the commencement of any action, suit or other
proceeding covered by the provisions of this Section. Nothing
herein shall be deemed to prevent the indemnitees at their election
and at their own expense from cooperating with Company and
participating in the defense of any litigation by their own counsel. If
Company fails to retain defense counsel within seven (7) business
days after receipt of Indemnitee's written notice that Indemnitee is
invoking its right to indemnification under this franchise,
indemnitees shall have the right to retain defense counsel on their
own behalf, and Company shall be liable for all reasonable and
necessary defense costs incurred by indemnitees.
Sec. 23. Insurance
The Company will maintain an appropriate level of insurance in
consideration of the Company's obligations and risks undertaken pursuant
to this franchise, unless a specific amount is required by the City's right-of-
way management ordinance, in which case said ordinance shall prevail.
Such insurance may be in the form of self-insurance to the extent
permitted by applicable law, under an approved formal plan of self-
insurance maintained by Company in accordance with sound accounting
and risk-management practices. A certificate of insurance shall be
provided to the City. The Company will require its self-insurance to
Ordinance 0-08-1701
Page 17 of 19
respond to the same extent as if an insurance policy had been purchased
naming the City as an additional insured, and any excess coverage will
name the City as an additional insured up to the amounts required by the
City's right-of-way management ordinance.
Sec. 24. Termination
(A)
Right to Terminate. In addition to any rights set out elsewhere in 'il
this franchise ordinance, the City reserves the right to terminate the 1
franchise and all rights and privileges pertaining thereto, in the i
event that the Company violates any material provision of the
franchise.
(B) Procedures for Termination.
(1) The City may, at any time, terminate this franchise for a
continuing material violation by the Company of any of
the substantial terms hereof. In such event, the City shall
give to Company written notice, specifying all grounds on
which termination or forfeiture is claimed, by certified
mail, addressed and delivered to the Company at the
address set forth in the Section titled "Notices" hereof.
The Company shall have sixty (60) days after the receipt
of such notice within which to cease such violation and
comply with the terms and provisions hereof. In the
event Company fails to cease such violation or otherwise
comply with the terms hereof, then Company's franchise
is subject to termination under the following provisions.
Provided, however, that, if the Company commences
work or other efforts to cure such violations within thirty
(30) days after receipt of written notice and shall
thereafter prosecute such curative work with reasonable
diligence until such curative work is completed, then such
violations shall cease to exist, and the franchise will not
be terminated.
(2) Termination shall be declared only by written decision of
the City Council after an appropriate public proceeding
whereby the Company is afforded the full opportunity to
be heard and to respond to any such notice of violation or
failure to comply. The Company shall be provided notice
in writing at least fifteen (15) working days prior to any
public hearing concerning the termination of the
franchise. In addition, ten (10) days notice by publication
Ordinance 0-08-1701
Page 18 of 19
shall be given of the date, time and place of any public
hearing to interested members of the public, which notice I.
shall be paid for by the Company. !,
(3) The City, after full public hearing, and upon finding
material violation or failure to comply, may terminate the
franchise or excuse the violation or failure to comply,
upon a showing by the Company of mitigating
circumstances or upon a showing of good cause of said
violation or failure to comply as may be determined by
the City Council.
(4) Nothing herein stated shall preclude Company from
appealing the final decision of the City Council to a court
or regulatory authority having jurisdiction.
(5) Nothing herein stated shall prevent the City from seeking
to compel compliance by suit in any court of competent
jurisdiction if the Company fails to comply with the terms
of this franchise after due notice and the providing of
adequate time for Company to comply with said terms.
Sec. 25. Renegotiation
If either City or Company requests renegotiation of any term of this
ordinance, Company and City agree to renegotiate in good faith revisions
to any and all terms of this ordinance. If the parties cannot come to
agreement upon any provisions being renegotiated, then the existing
provisions of this ordinance will continue in effect for the. remaining term of
the franchise.
Sec. 26. Severability
This ordinance and every provision hereof, shall be considered severable,
and the invalidity or unconstitutionality of any section, clause, provision, or
portion of this ordinance shall not affect the validity or constitutionality of
any other portion of this ordinance. If any term or provision of this
ordinance is held to be illegal, invalid or unenforceable, the legality,
validity or unenforceability of the remaining terms or provisions of this
ordinance shall not be affected thereby.
Sec. 27. No Waiver
Either City or the Company shall have the right to waive any requirement
contained in this ordinance, which is intended for the waiving party's
Ordinance 0-08-1701
Page 19 of 19
benefit, but, except as otherwise provided herein, such waiver shall be
effective only if in writing executed by the party for whose benefit such
requirement is intended. No waiver of any breach or violation of any term
of this ordinance shall be deemed or construed to constitute a waiver of
any other breach or violation, whether concurrent or subsequent, and
whether of the same or a different type of breach or violation.
Sec. 28. Effective Date
This franchise shall be effective on January 1, 2009, if Company has filed ~I
its acceptance as provided by the Section 5 titled "Acceptance of Terms of
Franchise" herein.
AND IT IS SO ORDERED.
The first rea ing an public hearing being conducted on the ,%~ ~ day of
~'r~~.cir~--~C~~ 2008.
nd reading and pu lic hearing being conducted on the
~? .e/~-v~ 2008.
ATTES CITY OF COLLEYVILLE
~~
ynthia Singleton, TRMC, CMC David Kelly
City Secretary Mayor
APPROVED AS TO FORM AND LEGALITY:
Matthew C. G. Boyle
City Attorney
day of
STATE OF TEXAS §
COUNTY OF DALLAS §
WHEREAS, there was finally passed and approved on December 2, 2008,
Ordinance No. 0-08-1701 granting to Atmos Energy Corporation, its successors and
assigns, a franchise to furnish and supply gas to the general public in the City of
Colleyville, Tarrant 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 5 of said ordinance provides in part:
"Sec. 5. Acceptance of Terms of Franchise
(A) The Company shall have sixty (60) days from and after the passage and
approval of this ordinance to file its written acceptance therof with the City
Secretary. If the Company does not file such written acceptance of this
franchise ordinance, the franchise ordinance shall be rendered null and
void."
AND, WHEREAS, it is the desire of Atmos Energy Corporation, the holder of the
rights, privileges and grants under the aforesaid franchise ordinance, to comply with the
above-quoted provisions of Section 5 thereof.
NOW, THEREFORE, Atmos Energy Corporation, acting by and through its duly
authorized officers, 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 14~h day of January, 2009.
Atmos Energy Corporation
_,, ~.
Presiden ,Mid-Tex Division
STATE OF TEXAS §
COUNTY OF TARRANT §
CITY OF COLLEYVILLE §
I, Cynthia Singleton, City Secretary of the City of Colleyville, 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 December 2, 2008, 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
day of , 2009.
thla-Singleton, City Secretary
City of Colleyville, Texas