HomeMy WebLinkAboutOrdinance No. 00-1176 ORIGINAL
ORDINANCE NO: ~-//~7~
AN ORDINANCE GRANTING TO TXU LONE STAR GAS, A DIVISION OF TXU
GAS COMPANY, A TEXAS CORPORATION, ITS SUCCESSORS AND
ASSIGNS, A FRANCHISE TO CONSTRUCT, MAINTAIN, AND OPERATE
PIPELINES AND EQUIPMENT IN THE CITY OF THE COLONY, DENTON
COUNTY, TEXAS, FOR THE TRANSPORTING, DELIVERY, SALE, AND
DISTRIBUTION OF GAS IN, OUT OF, AND THROUGH SAID CITY FOR ALL
PURPOSES; PROVIDING FOR THE PAYMENT OF A FEE OR CHARGE FOR
THE USE OF THE PUBLIC RIGHTS-OF-WAYS; AND PROVIDING THAT
SUCH FEE SHALL BE IN LIEU OF OTHER FEES AND CHARGES,
EXCEPTING AD VALOREM TAXES; AND REPEALING ALL PREVIOUS GAS
FRANCHISE ORDINANCES.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS:
SECTION 1: That the City of The Colony, Denton County, Texas, hereinafter called
"City," hereby grants to T×U Lone Star Gas Company, a Division of T×U GAS COMPANY,
hereinafter called "Company," its successors and assigns, consent to use and occupy the
present and future streets, alleys, highways, public thoroughfares, and other public Rights-of
Way of City, hereinafter referred to as "Public Rights-of-Way," for the purpose of laying,
maintaining, constructing, protecting, operating, and replacing therein and thereon pipelines
and all other appurtenant equipment to deliver, transport, and distribute natural gas ("gas") in,
out of, and through City for persons, firms, and corporations, including all the general public,
and to sell gas to persons, firms, and corporations, including all the general public, within the
City corporate limits, as such limits may be amended from time to time during the term of this
franchise, said consent being granted for a term ending December 31, 2023.
SECTION 2: Company shall lay, maintain, construct, operate, and replace its pipes,
mains, laterals, and other equipment to minimize interference with traffic and shall promptly
clean up and restore to approximate original condition all Public Rights-of-Way that it may
disturb. When Company makes, or causes to be made, excavations, or places, or causes to be
placed, obstructions in any Public Rights-of-Way, Company, to identify the location of such
excavations or obstructions, shall place, erect, and maintain barriers and lights consistent with
the Texas Manual of Uniform Traffic Control Devices and applicable rules and regulations of the
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City. In determining the location of Company's pipeline within City, Company shall minimize
interference with then existing aboveground or underground structures of City or other utility
franchisees. Likewise, in determining the location of the facilities of the City, City shall minimize
interference with then existing facilities of Company. In the event of a conflict between the
location of the facilities of Company and the location of the facilities of City or other utility
franchisees within Public Rights-of-Way that cannot otherwise be resolved, City or an
authorized agent of City shall resolve the conflict and determine the location of the respective
facilities. Except for emergency repairs, Company shall obtain street cutting, street excavation
or other special permits related to excavations in Public Rights-of-Way in connection with
Company's operations in Public Rights-of-Way as may be required by City ordinance or
regulations but shall not be required to pay any fee in connection therewith.
In the event of an emergency repair or safety inspection that requires excavation,
Company will notify City as soon as reasonably possible. Emergency repairs or safety
inspections shall be performed by the Company, and formal notice to the City shall be no later
than the end of the second working day following the initiation of the emergency repairs.
The construction, placement, replacement, repair, and location of all mains, pipes,
laterals and other appurtenant equipment used in connection with the provision of gas
hereunder shall be consistent and in compliance with the ordinances, regulations and rules of
City as now existing or as they may be amended or revised.
The City reserves the right to change the grade, install, repair, maintain, relocate or
widen any Public Right-of-Way within the present or future limits of the City and the Company
shall relocate, subject to reimbursement as provided herein, its mains, pipes, fittings and other
fixtures and facilities in order to accommodate the installation, repair, maintenance relocation,
widening, or changing of the grade of any street. Whenever by reason of changes in the grade
of a street or in the location or manner of constructing a water pipe, gas pipe, sewer, or other
aboveground or underground structure, it is deemed necessary by the City to remove, alter,
change, adapt, or conform the underground or aboveground facilities of the Company, the
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Company shall, at its cost, make the alterations as soon as practicable when ordered in writing
by the City, subject to reimbursement or surcharge as provided herein.
When the Company is required by City to remove or relocate its mains, laterals, and
other facilities to accommodate construction, reconstruction, repair, relocation, widening or any
other work on Public Rights-of-Way by City, and Company is eligible for reimbursement or
surcharge under federal, state, county, local or other programs and the application for
reimbursement or surcharge is required by statute, written governmental policies, or rules to be
filed and processed by the City, the Company shall have the burden to timely notify the City of
this fact and to timely provide all required data, information, and necessary executed application
forms to the City for the filing of the application. City shall make reasonable efforts to timely
and promptly notify the Company of application deadlines of which it may be aware. Except
when the federal, state, or county reimbursement program dictates otherwise, all
reimbursements shall first reimburse the City for all of its eligible cost and expenses and then
the Company shall be reimbursed for it eligible costs and expenses. The City reserves the right
relative to City projects (local projects initiated and to be processed by the City) to not include
the Company's request for reimbursement or relocation costs in its application if the City
concludes that the inclusion of such costs could adversely affect the approval or prioritization of
its application. Nothing herein shall be construed to prohibit, alter or modify in any way the right
of the Company to seek or recover a surcharge without filing a rate case for such relocation
costs pursuant to Section 104.112, et al, of the Texas Utilities Code. In the event Company is
denied full reimbursement from federal, state, or county programs, then Company expressly
retains the rights granted pursuant to Section 104.112, et al, of the Texas Utilities Code.
Company shall be under no duty to remove or relocate facilities for third parties but may
remove or relocate facilities on behalf of third parties at the expense of said third party.
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
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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.
Upon request of the Texas Railroad Commission, Company shall remove and abate any
portion of its gas system or any facility that is dangerous to life or property, and in case
Company, after notice, fails or refuses to act, the City may remove or abate the same, at the
cost and expense of Company, all without compensation or liability for damages to Company.
$£CTION 3: In the event of injury to or death of any person or damage to or
destruction of any property by reason of Company's construction, operation, maintenance, or
replacement, of Company's pipeline system within Public Rights-of-Way, or the operation of
Company's business within the City, Company shall indemnify and keep harmless City, its
officials, officers, employees and agents from any and all liability, claims, lawsuits, charges,
expenses, costs, or fees (including reasonable attorney's fees and costs of defense) in
connection therewith, except to the extent such injury, death or damage is attributable to City's
negligent act or omission. In the event of injury to or death of any person or damage to or
destruction of any property by reason of City's construction, operation, or maintenance of the
Public Rights-of-Way and facilities of City within the Public Rights-of-Way, City shall indemnify
and keep harmless Company, its officials, officers, employees and agents from any and all
liability in connection therewith, except to the extent such injury or damage is attributable to
Company's negligent act or omission. The provisions of this indemnity agreement are not
intended to create independent rights in favor of third parties and no such rights are hereby
created. The terms and provisions of this paragraph shall survive the termination or expiration
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of this franchise.
SECTION 4: Company will insure against the risks undertaken pursuant to this
franchise, including indemnification under Section 3 hereof. Such insurance may be in the form
of self-insurance to the extent permitted by applicable law under a Company approved formal
plan of self-insurance maintained in accordance with sound accounting practices. Otherwise,
Company shall maintain reasonably adequate insurance covering its obligations of indemnity of
Section 3 hereof.
SECTION 5: In addition to the rates charged for gas supplied, Company may make
and enforce reasonable charges, rules and regulations for service rendered in the conduct of its
business, including a charge for services rendered in the inauguration of natural gas service.
Company may require, before furnishing service, the execution of a contract for such service.
Company shall have the right to contract with each customer with reference to the installation
of, and payment for, any and all of the gas piping from the connection thereof with the
Company's main in the Public Rights-of-Way to and throughout the customer's premises.
Company shall own, operate and maintain all service lines, which are defined as the supply
lines extending from the Company's main to the customer's meter where gas is measured by
Company. The customer shall own, operate, and maintain all yard lines and house piping.
Yard lines are defined as the supply lines extending from the point of connection with
Company's customer meter to the point of connection with customer's house piping.
SECTION 6: Company shall be required to extend distribution mains in any Public
Rights-of-Way up to one hundred feet (100') for any one residential customer only if such
customer, at a minimum, uses gas for unsupplemented space heating and water heating.
Company shall not be required to extend transmission mains in any Public Rights-of-Way within
City or to make a tap on any transmission main within City unless Company agrees to such
extension by a written agreement between Company and a customer.
SECTION 7: Company shall be entitled to require from each and every customer of
gas, before gas service is commenced or reinstated, a deposit in an amount calculated
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pursuant to the Company's Quality of Service Rules as may be in effect during the term of this
franchise. Said deposit shall be retained and refunded in accordance with such Quality of
Service Rules and shall bear interest, as provided in Section 183.003 of the Texas Utilities
Code as it may be amended from time to time. Company shall be entitled to apply said deposit,
with accrued interest, to any indebtedness owed Company by the customer making the deposit.
SECTION 8: Company shall furnish adequate and efficient service to the public at fair,
just, and reasonable rates and charges therefor; and Company shall maintain its property
devoted to the public service in good repair throughout the term of this franchise.
SECTION 9: In consideration for the rights and privileges herein granted to Company
by the City, including expressly, without limitation, the right to use the Public Rights-of-Way of
the City, Company, its successors and assigns, agrees to pay and the City agrees to accept an
annual franchise fee payment in the amount and manner described herein.
(a) On or before April 15, 2000, Company shall pay a sum of money equivalent
to two percent (2%) of the gross revenue received by the Company from the sale of gas
to its residential and commercial consumers within the corporate limits of said City
during the period of May 1, 1999 to December 31, 1999 (expressly excluding the gross
revenues derived from the sales to industrial and governmental users and consumers in
said City), and shall be payment for the rights and privileges granted hereunder during
the calendar quarter January 1, 2000 to March 31, 2000.
(b) On or before May 15, 2000, Company shall pay a sum of money equivalent
to two percent (2%) of the gross revenue received by the Company from the sale of gas
to its residential and commercial consumers within the corporate limits of said City
during the period of January 1, 2000 to March 31, 2000 (expressly excluding the gross
revenues derived from the sales to industrial and governmental users and consumers in
said City), and shall be payment for the rights and privileges granted hereunder during
the calendar quarter April 1, 2000 to June 30, 2000.
(c) On or before August 15, 2000, and for each quarterly payment thereafter.
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Company shall pay a sum of money that shall be equivalent to four percent (4%) of the
following: (1) the gross revenues received by Company from the sale of gas to its
residential, commercial, industrial and transportation consumers within the corporate
limits of said City during the preceding quarter, (2) the gross revenues received by
Company for the transportation of third-party gas through Company's local distribution
system within the City to consumers within the corporate limits of the City during the
preceding quarter, and (3) the total value of third-party gas transported Company
through its local distribution system within the City to consumers within the corporate
limits of the City during the preceding quarter, and shall be payment for the rights and
privileges granted hereunder during the calendar quarter in which the payment is made.
Subsequent payments shall be due and payable quarterly thereafter on or before
the fifteenth (15th) day of the second month following the end of the calendar quarter
upon which said payment is based, with last payment being made on November 15,
2023, and shall be payment for the rights and privileges granted hereunder during the
calendar quarter in which such payment is made, that is, the quarterly payments shall be
as follows:
Payment Quarter Upon Which Quarter For Which
Due Date Payment Is Based Payment is Made
Aug 15 Apr 1 - June 30 July 1 - Sept 30
Nov 15 July 1 - Sept 30 Oct 1 - Dec 31
Feb 15 Oct 1 - Dec 31 Jan 1 - Mar 31
May 15 Jan 1 - Mar 31 Apr 1 - June 30
It is expressly agreed that gross revenues exclude (1) taxes imposed by law on
customers that the Company is obligated to collect and which the Company passes on,
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in full, to the applicable tax authority or authorities; (2) any investment income earned by
the Company; (3) other revenue of the Company derived from the lawful charges to
connect gas within the City; to disconnect gas service within the City; to handle returned
checks from customers within the City and such other service charges and charges as
may, from time to time, be authorized in the rates and charges on file with the City, (4)
uncollected accounts.. Each of said quarterly payments shall be for the rights and privileges
herein granted to Company, including expressly, without limitation, the right to use the Public
Rights-of-Way of said City. Nothing in this franchise shall limit or otherwise affect Company's
rights under the law to appeal, challenge, or otherwise contest in any forum having jurisdiction
any present or future provision of any Ordinance of the City (except this Ordinance).
It is also expressly agreed that each of the aforesaid quarterly payments shall be in lieu
of any and all other and additional occupation taxes, easement, and franchise taxes or charges
(whether levied as an ad valorem, special, or other character of tax or charge), municipal
license and inspection fees, street taxes, and street or alley rentals or charges, and all other
and additional municipal taxes, charges, levies, fees, security and/or insurance requirements,
and rentals of whatsoever kind and character that the City may now impose or hereafter levy
and collect, excepting only the usual general or special ad valorem taxes that the City is
authorized to levy and impose upon real and personal property. Should the City not have the
legal power to agree that the payment of the foregoing sums of money shall be in lieu of such
taxes, fees, security and/or insurance requirements, rentals, levies, or charges as aforesaid,
then the City agrees that it will apply so much of said sums of money paid as may be necessary
to satisfy Company's obligations, if any, to pay any such taxes, fees, security and/or insurance
requirements, rentals, levies, or charges.
Should any payment due date required by this franchise fall on a weekend or declared
bank holiday, payment shall be delivered to the City no later than the close of business of the
last working day prior to any specifically required due date contained within this franchise.
Each transportation customer of the Company shall disclose to the Company the
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purchase price of said gas. Should the transportation customer fail or refuse to disclose or
furnish such purchase price to Company, Company shall establish same by utilizing a price
equal to the index (large packages only) price per MMBtu published for each month in Inside
FERC's Gas Market Report in the table titled "Delivered Spot Gas Prices" for gas delivered at
Houston Ship Channel?Beaumont, Texas, or a mutually agreeable successor publication and
index. Such index price for any given month shall be multiplied by the actual volume
transported by Company during such month for such transportation customer, and the product
thereof shall then be multiplied by the applicable percentage to determine the amount due the
City. Company shall use all due diligence in collecting from customers any and all sums due or
owed to the City for the franchise fee on transportation transactions; however, the Company
shall be obligated to pay to the City only the franchise fees actually collected from the
transportation customers.
In order to determine the gross receipts received by Company for those categories
identified in the preceding paragraphs of this Section 8, Company agrees that, on the same
date that payments are made, it will file with the City Secretary a report in a form mutually
acceptable to the City and Company in sufficient detail to itemize revenues from each of the
categories identified in the preceding paragraphs of this Section 8. The City may, if it sees fit,
have the books and records of Company examined by a representative of the City to ascertain
the correctness of the reports agreed to be filed herein.
Each of the payments herein provided for shall be for the rights and privileges granted to
Company by this franchise for the quarter of the year in which the payment is made, although
the payments shall be calculated based on the gross receipts of the preceding quarter.
It is recognized by both City and Company that the franchise fee on transportation
revenue and on value of gas requires Company to put in place a procedure to collect such
revenues from Company's customers and that such procedure may not be in place on the
effective date of this Ordinance. In such event Company shall pay, for the first quarter payment
due May 15, 2000, such of the franchise payment it has actually collected during such quarter.
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SECTION 10: The failure of the Company to comply with any terms of this Franchise
Ordinance after the Company has been given written notice of its default under this Franchise
Ordinance and adequate time in which to cure such default shall entitle the City to compel
compliance by suit in any court of competent jurisdiction and if, upon final judgment, not subject
to further appeal, being entered in favor of the City, the Company remains in default of any
provision of the Franchise Ordinance or the final judgment, the City may declare the Franchise
Ordinance to be forfeited and canceled. The Company further agrees that if for any reason
other than an event of force majeure or a good faith dispute respecting the actual amount due
under this franchise, the Company fails to pay the franchise fees as provided in this Franchise
Ordinance within sixty (60) days following written notice from the City that the Company has
failed to make payment, such failure shall be sufficient to permit the City to forfeit the franchise
without court action. For the purposes of this section, an event of force majeure means any
event or circumstance or combination of events or circumstances beyond the reasonable
control of the Company that materially and adversely affects or affect the performance by the
Company of its obligations under and pursuant to this Franchise Ordinance including, but not
limited to any act of God; act of civil or military authority; act of war (whether declared or
undeclared); act (including delay, failure to act, or priority) of any governmental authority
(including the City); civil disturbance; insurrection or riot; sabotage; fire; inclement weather
conditions; earthquake; flood; strike; work stoppage or other labor difficulty; embargo; major
equipment breakdown; or other failure or delay beyond its reasonable control. The Company's
financial inability to perform shall expressly be excluded from force majeure events.
SECTION 11: It is the intention of the City that this Ordinance, and every provision
thereof, 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 on
any other portion of the Ordinance.
SECTION 12: 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
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any third party. The rights, privileges, and franchises granted by this ordinance are not to be
considered exclusive, and City hereby expressly reserves the right to grant, at any time, like
privileges, rights, and franchises as it may see fit to any other person or corporation for the
purpose of transporting, delivering, distributing, or selling gas to and for City and the inhabitants
thereof.
SECTION 13: This franchise shall not be assigned, transferred, or otherwise conveyed
by Company to any other person, partnership, corporation, or other business entity, except to
an affiliated entity, without the express written consent of the governing body of the City, such
consent to be evidenced by an ordinance that fully recites the terms and conditions, if any, upon
which such consent is given. For purposes hereof, an "affiliated entity" means Company's
corporate parent owning more than 50% of the shares of Company, a partnership or joint
venture in which Company owns an interest of more than 50%, or a subsidiary entity of
Company in which Company owns an interest of more than 50%.
SECTION 14: Ail Ordinances or parts of Ordinances of City granting franchises for gas
delivery purposes that were held by Company shall be automatically canceled and annulled,
and shall be of no further force and effect. The last payment under the preceding Franchise
Ordinance by Company to City will made on February 15, 2000.
SECTION 15: If either City or Company requests renegotiation of any term of this
Franchise Ordinance, Company and City agree to renegotiate in good faith revisions to and all
terms of this Franchise Ordinance. If the parties cannot come to agreement upon any
provisions being renegotiated, then the existing provisions of the Franchise Ordinance will
continue in effect for the remaining term of the Franchise.
SECTION 16: This Franchise Ordinance shall become effective on April 1, 2000,
provided Company files its written acceptance of this Ordinance within (30) days of its final
passage and approval by the City. Should Company fail to file its written acceptance of the
provisions of this Franchise Ordinance, then this Franchise Ordinance shall become null and
void and the previous Franchise Ordinance as previously amended shall become and remain in
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full force and effect.
PASSED AND APPROVED ON FIRST .day of
ayor, City of The Colony, Texas
·
APPROVED AS TO FORM:
0 0
City Attorney
I, ~'TT'l ~.- /-~ ' C_~.~ , City Secretary of the City of The Colony,
Denton County, Texas, do hereby certify that the above and foregoing is a true and
correct copy of an ordinance passed by the City C~ncil of the City of The Colony,
Texas, at a~UL~I~, session, held on the -~.~'~ day of
FE.~,~ ~J I~,I~/~ ,2000, as it appears of record in the Minutes in Book
, page
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WITNESS MY HAND AND SEAL OF SAID CITY, this the c~ C.~ ~...~ day of
/" ~)~/.,/~q-~'E~/' , A.D. 2000.
City Secretary
City of The Colony, Texas
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EXTRACT FROM THE MINUTES OF
THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS
The City Council of the City of The(Co~lony, Denton County, Texas, convened in
'F~,£GU~.P~Y'~. session on the03.~-~ -- dayof Jc'F_.~j ~ F4~ ,2000,
/
at ~7': oo p. M., with the following persons present:
Mayor:
City Council Members: J~T-oH
Absent:
A quorum being present, came on to be read and considered Ordinance No.
~-//~ granting to TXU Lone Star Gas, a Division of TXU Gas Company, a
Texas corporation, a franchise to furnish and supply natural gas to the general public in
the City of The Colony, Texas, for the transporting, delivery, sale and distribution of gas
in, out of, and through said municipality for all purposes. On motion made by
~OUIv'~IL-t}~£YYl i~£ ~ ~"~H.~ &~.~?~DO,',.~ and
secondedby (/"~,/U~/Z/,K/~,8~)~¢,~ ~OH~/ ¢,~// ___
__ [ ,4 P~ which carried
unanimously, the City Council voted the passage of the Ordinance and to record same at
length in these minutes.
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STATE OF TEXAS §
COUNTY OF DENTON §
CITY OF THE COLONY §
I, ~7"/'/ /~'_ ~)~ , City Secretary of the CityofThe Colony,
Texas, do hereby certify that the above and foregoing is a true and correct copy of the
proceedings of the City Council of the City of Tl~e-C01on'y, Texas, at a
~-/~E. &v/..~q~ session, held on the~'~ day of
,~'~--~/~/.,/~ ~' ,2000, in connection with the passage and adoption of
Ordinance No.~ ~) ~//'~ ~, granting a franchise to TXU Lone Star Gas and that the
same is of record in Book , page of the Minutes of the City
Council.
WITNESS MY HAND AND SEAL OF SAID CITY, this the c~~ day of
,~"Z~,~ ~J/~ ~),,"~ , A.D. 2000.
City Secretary
City of The Colony, Texas
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