HomeMy WebLinkAboutItem 11 - Atmos Franchise Renewal MEMO TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: BRUNO RUMBELOW, CITY MANAGER
MEETING DATE: MARCH 20, 2012
SUBJECT: ATMOS FRANCHISE RENEWAL— SECOND READING
RECOMMENDATION
City Council consider an ordinance renewing a franchise agreement with Atmos. The Atmos
franchise expired on February 4, 2006 and has been on hold pending negotiation of some
systemwide franchise renewal issues. Attached is a renewal franchise that has been
negotiated with the City of Grapevine and Atmos.
BACKGROUND
This is the second reading of this proposed ordinance. The first reading occurred on
February 7, 2012. The City of Grapevine City Charter (Section 10.02) requires that
franchises receive two readings and not passed until 30 days after the first reading. The
Charter also requires that the franchise be published in a newspaper, costs to be borne by
the franchisee.
The franchise term is set at 15 years. The City of Grapevine City Charter prohibits any
franchise from exceeding 20 years. Fifteen years is a standard length for franchises at this
time.
The compensation for the franchise is set at 5% of gross revenues. The definition of gross
revenues does not include the franchise fee.
The franchise provides that Atmos will relocate its lines when necessary for public works
projects, that an assignment of the franchise will not occur without City permission (unless it
is to an affiliate), that Atmos will indemnify the City for claims occasioned by Atmos' use of
the right-of-way, that Atmos will maintain insurance, and provisions for termination and that
the City may examine records in regard to payments to the City.
There are several standard provisions, such as severability, no third party beneficiaries,
previous franchise terminated, renegotiation, reservation of rights, rate review, duty to serve,
written acceptance, compliance with other laws, and similar standard terms.
The Utility Committee has reviewed the proposed franchise and recommends approval. The
franchise will take effect May 1, 2012 pending newspaper publication once weekly for four
weeks.
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ORDINANCE NO.
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 GRAPEVINE, 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 Grapevine 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 Grapevine 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 GRAPEVINE, TEXAS:
SECTION 1. All matters stated hereinabove are found to be true and correct and are
incorporated herein by reference as if copied in their entirety.
SECTION 2. GRANT OF AUTHORITY I LENGTH OF FRANCHISE 1 TERM
AND CONDITIONS
(A) Grant of Authority. The City of Grapevine, 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.
(B) Length of Franchise. Said privilege and license being granted by this
Ordinance is for a term ending December 31, 2027.
(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.
SECTION 3. 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 Grapevine, 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.
ORD. NO. 2
(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
ORD. NO. 3
(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 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.
(1) "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) .
SECTION 4. EFFECT OF OTHER MUNICIPAL FRANCHISE ORDINANCE FEES
ACCEPTED AND PAID BY COMPANY
ORD. NO.
(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 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
aclmowledges 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.
SECTION 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, 2027, 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.
SECTION 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-
SECTION 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 approval of the City Council of
ORD. NO. 5
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 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 Council of its qualifications,
character, the effect of the Transfer and such other matters as the 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.
SECTION 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 Grapevine City
Charter, as amended, and all other generally applicable ordinances of the City of Grapevine,
not inconsistent herewith, including, but not limited to, ordinances regulating the use of
Public Rights-of-Way.
SECTION 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 Grapevine, Texas, are hereby repealed.
SECTION 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 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
ORD. NO. 6
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 COMPANY
City Manager Manager of Public Affairs
City of Grapevine Atmos Energy Corp.,
P.O. Box 95104 Mid-Tex Division
Grapevine, Texas 76099 800 E. Border Street
Arlington, Texas 76010
With a copy to
Matthew Boyle
City Attorney
City of Grapevine
4201 Wingren, Suite 108
Irving, Texas 75062
SECTION 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.
SECTION 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 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
ORD. NO. 7
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 Council. The notice to the Company
shall include a list of the failures complained of. Company shall have an opportunity to
address the 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 subj ect to termination as outlined in Section 24.
SECTION 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 (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 Grapevine.
(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 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 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
ORD. NO.
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.
SECTION 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 designee 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.
SECTION 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.
SECTION 17. DUTY TO SERVE.
ORD. NO. 9
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
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 Council in granting this Franchise. The
Council may render its opinion at its next regular meeting but in no event shall the Council be
required to act in less than seven(7) days.
SECTION 18. RATES.
Company shall sh 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.
SECTION 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 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, 2012, for the period January 1 through
March 31, 2012, 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,
ORD. NO. 10
2028 and will be for the calendar quarter October 1 through December 31, 2027. 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 CIAO
recorded during the preceding calendar year. The initial CIAC franchise fee payment will be
due on or before April 30, 2012, and will be based on the calendar year Januga 1 through
December 31, 2011. The final payment of franchise fee amounts based on CIAC will be
April 30, 2028, based on the calendar year ending December 31, 2027.
(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.
(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
ORD. NO. 11
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. 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.
(F) 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 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 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.
SECTION 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
ORD. NO. 12
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) calendar 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 underpayment to City, including any interest calculated in accordance with the
Section 19, 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 Council. The
notice to the Company shall include a list of the failures complained o£ Company shall have
an opportunity to address the 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."
ORD. NO. 13
SECTION 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.
(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 gas for light, heat, and power for City and the inhabitants thereof.
(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.
SECTION 22. 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
ORD. NO. 14
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.
(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 Indemmitees.
SECTION 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
ORD. NO. 15
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
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.
SECTION 24. TERMINATION
(A) Right to Terminate.
In addition to any rights set out elsewhere in this Franchise Ordinance, the City
reserves the right to terminate the Franchise and all rights and privileges pertaining
thereto, in the 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)
ORD. NO. 16
working days prior to any public hearing concerning the termination of the Franchise.
In addition, ten (10) days notice by publication shall be given of the date, time and
place of any public hearing to interested members of the public, which notice 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.
SECTION 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.
SECTION 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.
SECTION 27. NO WAIVER
ORD. NO. 17
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 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.
SECTION 28. EFFECTIVE DATE
This Franchise shall be effective on May 1, 2012, if Company has filed its acceptance
as provided by the Section 5 titled"Acceptance of Terms of Franchise"herein.
PRESENTED, AND GIVEN first reading on the 7th day of February, 2012, at a
regular meeting of the City Council of the City of Grapevine, Texas
ATTEST: CITY OF GRAPEVINE
City Secretary Mayor
PRESENTED, AND GIVEN second reading on the 20th day of March, 2012, at a
regular meeting of the City Council of the City of Grapevine, Texas; and given second
reading, passed and approved on the 20th day of March, 2012, by a vote of ayes and
noes at a regular meeting of the City Council of the City of Grapevine, Texas.
ATTEST: CITY OF GRAPEVINE
City Secretary Mayor
ORD. NO. 18
APPROVED AS TO FORM:
City Attorney
ATMOS ENERGY CORPORATION
TITLE:
DATE OF ACCEPTANCE-
ORD. NO.