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HomeMy WebLinkAbout87-2702'204 ORDINANCE NO. 87-2702 AN ORDINANCE OF THE CITY OF PLAINVIEW, TEXAS, GRANTING TO ENERGAS COMPANY (A TEXAS CORPORATION WITH ITS PRINCIPAL OFFICE IN THE CITY OF DALLAS, DALLAS COUNTY, TEXAS) THE FRANCHISE AND RIC~TS TO CONDUCT IN SAID CITY THE BUSINESS OF ACQUIRING, MAINTAINING, CONSTRUCTING, LAYING, REPAIRING, REMOVING, REPLACING, INSTALLING, OPERATING, AND DISPOSING OF A GAS SYSTEM FOR THE SALE, TRANSPORTATION, AND DISTRIBUTION OF NATURAL GAS WITHIN THE MUNICIPAL BOUNDARIES OF THE CITY AND TO THE RESIDENTS AND BUSINESSES LOCATED THEREIN FOR LIGHT, HEAT, POWER, AND ANY OTHER PURPOSES AND THE RIGHT TO USE THE PRESENT AND FUTURE STREETS, ROADS, HIGHWAYS, ALLEYS, PUBLIC WAYS, AND REAL PROPERTY IN SAID CITY AND OWNED OR CONTROLLED BY SAID CITY FOR SAID PURPOSES; PRESCRIBING THE TERMS AND CONDITIONS TO WHICH SAID FRANCHISE AND RIGHTS ARE SUBJECT; AND PRESCRIBING THE TERM OF SAID FRANCHISE AND RIGHTS. WHEREAS, the predecessors in interest to Energas Company ("Energas"), a Texas Corporation, have erected, constructed, and maintained a gas distribution system within the corporate limits of the City of Plainview, Texas; and upon the public ways; and WHEREAS, Energas has engaged in the transportation, distribution and sale of natural gas in the State of Texas and in the City of Plainview for many years under the franchise originally granted by said City on February 1968, in Ordinance No. 68-994; and WHEREAS, Energas has succeeded to all the rights and obligations of the holder of the previous franchise, which expired on June 20, 1987; and 1 of 20 WHEREAS, the City of Plainview, a Texas municipal corporation, has a right, duty and obligation to protect and preserve the interests of the citizens of Plainview in the operation and usage of the public ways within its corporate limits; and WHEREAS, the City of Plainview and Energas have engaged in extensive discussions and negotiations in an effort to obtain a new franchise. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF PLAINVIEW, TEXAS: Subject to the terms and conditions hereinafter set forth, ENERGAS COMPANY, a Texas corporation with its principal office in the City of Dallas, Dallas County, Texas (hereinafter referred to as "Energas"), be, and hereby is, granted the non exclusive franchise and rights to conduct in the City the business of acquiring (by purchase, lease, or otherwise), maintaining, constructing, laying, repairing, removing, replacing, installing, operating, and disposing of (by sale, lease, or otherwise) a gas system, as hereinafter defined, for the sale, transportation, and distribution of natural gas within the municipal boundaries of the City and to the residents and businesses located therein for light, heat, power, and any other purpose during the term set forth below, such franchise and rights to include, but not to be limited to, the right to use the present and future streets, roads, highways, alleys, and public ways 2 of 20 206 owned by or under the control of the City, for purposes of maintaining, constructing, laying, repairing, removing, replacing, installing, and operating any and all components of the gas system, together with access, at all times and from time to time, to such streets, roads, highways, alleys, and public ways during the term hereof. ARTICLE I DEFINITIONS For purposes of this ordinance, the following terms shall have the meaning set forth below: Section 1.1 Gas System. The term "gas system" shall mean any and all pipelines, as hereinafter defined, meters, valves, compressors, anti-corrosion items, facilities, structures, machinery, equipment, and appurtenances of any kind, which Energas, in its sole discretion, may deem necessary or advisable for the exercise of the franchise and rights granted to Energas herein. Section 1.2 Pipelines. The term "pipelines" shall mean any and all above-ground and below-ground pipes, including, but not limited to, mains, distribution lines, secondary lines, laterals, and other pipes, that have been, are being, or are intended to be used at any time in, or in connection with, the sale, transportation, or distribution of natural gas within the City. 3 of 20 ' ARTICLE I I TERM Section 2.1. Term. Unless earlier terminated in accordance with the terms and provisions hereof, the term of the franchise and rights hereby granted to Energas shall be for a period of twenty (20) years, commencing on the effective date hereof. ARTICLE III ACKNOWLEDC~RNTANDGRANT OF SPECIFIC RIGIITS OF ENERGAS In addition to the franchise and rights granted herein to Energas, the City acknowledges that Energas has, and hereby grants to Energas, the following rights and powers: Section 3.1. Right to Contract. Energas may enter into separate gas service contracts with industrial or other consumers in the City, whose average consumption of gas generally is substantially in excess of the average consumption by residential or commercial consumers or whose service requirements generally are substantially different from the aver.age service requirements of residential or commercial consumers. Section 3.2. Discontinuance of Service. Energas may discontinue service to any residential or commercial consumer for any lawful reason, including, but not limited to, such consumer's failure to pay, when due, any indebtedness owed by such consumer to Energas, regardless of whether Energas holds any deposit previously paid by the consumer. 4 of 20 Section 3.3 Deposits. (a) Energas may require any residential or commercial consumer to deposit .With Energas, prior to the commencement of service or the renewal of discontinued service, an amount of money not less than ten dollars ($10.00) but not exceeding one-sixth of the estimated annual billings of such consumer as determined in Energas' good faith judgment, provided, however, that if the consumer's actual use is .at least twice the estimated billings, Energas may require an additional deposit within two (2) days. In no event, however, shall Energas require or retain any deposit in excess of any maximum amount permitted by applicable statute, ordinance, rule, or regulation. All deposits held by Energas shall bear interest at the minimum statutory rate per annum. (b) Energas may, without prior notice to any person or entity, apply a consumer's deposit, together with the interest accrued thereon, to the payment of any past due indebtedness owed to Energas by such consumer and may require such consumer to furnish to Energas, prior to the application of all or any portion of the deposit against the unpaid indebtedness, the amount required to restore the deposit to its original amount, exclusive of interest. (c) Subject to Energas' right to apply a deposit and the interest accrued thereon to a consumer's indebtedness as described in subsection 3.3(b) of this Article III, Energas shall return to each consumer the deposit paid by such consumer, together with the interest accrued thereon, on or prior to the tenth (10th) day of the month following the month in which Energas permanently discontinued 5 of 20 service to such consumer or on any date required by applicable statue, ordinance, rule, or regulation, whichever date shall first occur. Section 3.4. Reconnection Charges. In addition to any and-all other proper charges, Energas may charge and collect from any residential or commercial consumer whose service has been discontinued by Energas a reasonable reconnection or similar charge for recommencing service to such consumer. Section 3.5. Adoption of Rules. From time to time during the term hereof, Energas may, subject to any and all valid applicable statutes, ordinances, rules, and regulations of any federal or state governmental authority or agency, make and enforce reasonable rules pertaining to Energas' business and operations, including, but not limited to, requiring any residential or commercial consumer to execute and deliver a written contract or amendment to an existing written contract prior and as a condition to the initial commencement, recommencement, or continuation of service to such consumer. Section 3.6. Removal of Gas System. (a) Energas may remove all or any portion of the gas system upon the termination by the City, pursuant to Article VI of this ordinance, of the franchise and rights granted hereby. 6 of 20 210 Section 3.7. Consumer Preferences. Energas may give preference to residential consumers over other consumers during periods in which the total volume of gas available.for distribution to and within the City is insufficient, for any reason whatsoever, to adequately supply all residential and commercial consumers. ARTICLE IV OBLIGATIONS OF ENERGAS Section 4.1. Franchise Fee. (a) As consideration for the grant of the franchise and rights herein and for the use by Energas of the streets, roads, highways, alleys, and public ways owned or controlled by the City, Energas shall pay to the City, within thirty (30) days after the end of each calendar quarter, a franchise fee equal to three percent (3%) of Energas' gross receipts derived from the sale, transportation, and distribution by Energas of natural gas, within the City limits during the preceding calendar quarter. At any time during the term of this franchise, the City may increase the franchise fee payable hereunder, subject to and in accordance with all of the following terms and conditions: (1) The City may increase the franchise fee only if the franchise fee, as so increased, constitutes a charge for Energas' use of the City's streets, roads, highways, alleys, and public ways that is reasonable and lawful. Such increase must be adopted by the City Council at a public hearing that is held no earlier than thirty 7 of 20 (30) days following the delivery to Energas by the City, in person or by certified or registered mail, of a written notice stating the reason for, and the date, time, and place of such hearing. (2) The franchise fee may not be increased pursuant to this Subsection 4.1(a) more than one time in any five-year period during the term of this franchise. (3) The franchise fee may not be increased at any one time by an' amount exceeding one-half of one percent (1/2 of 1%) of Energas' gross receipts derived from the sale, transportation, and distribution by Energas of natural gas, within the City limits; and the total franchise fee payable hereunder may not be increased during the term hereof to an amount exceeding the lesser of (1) five percent (5%) of such gross receipts or (ii) the percentage of gross receipts payable by any electric utility doing business within the City pursuant to a franchise granted by the City. (4) In the event the franchise fee is increased in accordance with this Subsection 4.1(a), the City agrees that Energas may immediately add a line-item surcharge to the monthly bills of Energas' customers located within the City in an amount sufficient to recover such increase. (b) Nothing in Subsection 4.1(a) shall preclude, or be deemed to preclude, Energas and the City from agreeing to an increase in the franchise fee in excess of the limitations imposed in such subsection. (c) The franchise fee shall be paid and received in lieu any tax, license, charge, fee, street, or alley rental or other character of charge for the use and occupancy of the streets, roads, highways, 8 of 20 81t 812 alleys, and public ways owned or controlled by the City; in lieu of any easement tax, whether levied as an ad valorem, special, or other character of tax, and in lieu of any imposition other than the usual general or special ad valorem taxes now or hereafter levied. Such fee is not in lieu of, and Energas agrees that the City may assess Energas for, water, sewer, and garbage services provided by the City to Energas and any and all municipal sales taxes collected by Energas. Section 4.2. No Obstruction of Public Property. Energas shall not, unnecessarily or for an unreasonable period of time, obstruct or interfere with the public use of any streets, roads, highways, alleys or public ways owned or controlled by the City. Section 4.3. Repair of Damages. Energas shall repair any and all damages caused solely by Energas to any real property owned or controlled by the City and shall restore, as nearly as practicable, such real property to substantially its condition immediately prior to the incident causing such damage. Energas shall commence such repairs immediately upon completion of the work or activity in which Energas was involved at the time the damage occurred and shall complete such repairs as promptly as possible. Energas shall maintain the repairs to the satisfaction of the City for one year from the date the surface of said street, road, highway, alley or public way is broken for such construction or maintenance work, after which time, responsibility for the maintenance shall become the duty of the City. The City may, from time to time, adopt reasonable ordinances regulating such work. 9 of 20 Section 4.4. Conduct of Work and Activities. Energas shall use reasonable care in conducting its work and activities in order to prevent injury to any person and unnecessary damage to any real or personal property. Section 4.5. Use of Alleys. Energas shall attempt to utilize the alleys of the City insofar as is reasonably practicable in conducting its work and activities hereunder. Notwithstanding the foregoing, however, Energas may, when reasonably necessary, utilize the streets and any other public ways owned or controlled by the City to perform such work and activities. Section 4.6. Service and Supply. Energas shall use reasonable care to furnish good and reliable service and an adequate supply of natural gas containing a hearing value of not less than nine hundred (900) British thermal units per cubic foot. The term "heating value," as used herein, shall mean the number of BTUs produced by the complete combustion, at a constant pressure, of the amount of gas that would occupy a volume of (1) cubic foot at a temperature of 60 degrees Fahrenheit if saturated with water vapor and at a constant pressure of 14.73 psia and under standard gravitational force (acceleration 980.665 cm per sec. per sec.) with air of the same ~emperature and pressure as the gas when the products of combustion are cooled to the initial temperature of the gas and air and when the water formed by combustion is condensed to the liquid state. The gross heating value so determined shall be corrected from the 10 of 20 conditions of testing and analysis to that of the actual condition of the gas as delivered, expressed in BUTs per cubic foot and reported at a pressure base of 14.65 psia at 60 degrees Fahrenheits on a dry basis when the gas as delivered contains seven (7) pounds of water or less per one million cubic feet. Section 4.7. Installation of Underqround Pipelines. Energas shall, when reasonably practicable, install all pipelines underground at such depth and in such manner so as not to interfere with the existing pavement, curbs, gutters, or underground wires, cables, or water or sewer pipes owned or controlled by the City. Section 4.8. No Discrimination Between Consumers. Subject to Energas' rights set forth in Sections 3.1 and 3.7 of Article III of this ordinance, Energas shall not discriminate against any consumer with respect to charges for natural gas or services rendered under substantially the same circumstances to other consumers of the same classification. Section 4.9. Installation of Lines and Meters to Consumers. Energas shall, at its sole expense, lay a pipeline of adequate size to or near the property line of each consumer and shall install a meter at an appropriate place in order to measure the consumption of gas by such consumer, provided, however, that Energas shall not be required, and has no obligation hereunder, to lay or extend any pipeline a distance of more than seventy-five feet (75') for the purpose of furnishing natural gas to only one consumer. 11 of 20 Section 4.10. Changes in Gas System. (a) Energas shall, upon written request from the City, change the location, position, route, or depth of any pipeline or other component of the gas system if and when such change becomes reasonably necessary because of a change in the grade of any street, road, highway, alley, public way, or other real property owned or controlled by the City or because of any change in the location of, or in the manner of maintaining, constructing, laying, repairing, removing, replacing, installing, or operating, any pavement, curbs, gutters, or underground wires, cables or water or sewer pipes owned or contrOlled by the City. The City's written request for such change must set forth, in detail, all of the essential elements and specifications of the requested change. (b) All of the changes in location, position, route, or depth described in the immediately foregoing subsection 10(a) shall be made at Energas' sole expense, provided, however, that Energas may seek payment from any governmental entity or agency (except the City), person, or party of any amount to which Energas may lawfully be entitled because of such change in location, position, route, or depth or because of the abandonment of any pipeline or other component of the gas system regardless of whether such pipeline or ~omponent is wholly or partially located in any public or private way or right-of-way. Section 4.11. Schedule of Rates. Energas shall, at all times, keep on file with the City a schedule setting forth current residential and commercial rates for natural gas and services 12 of 20 rendered under substantially the same conditions to consumers of the same classification. Nothing contained in this ordinance, however, shall adversely affect Energas' right to apply for an increase in all or any of its rates at any time and from time to time during the term hereof and to a lawful and equitable decision with respect to any such application. Section 4.12. Rebates. Energas shall not grant, directly or indirectly, any rebate, in the form of money or any other thing of value, to any consumer in order to circumvent the rate schedule filed with the City pursuant to Section 4.11 of this Article IV. Section 4.13. Maps of Gas System. Energas shall, at all times, keep on file with the City Engineer a map or maps showing the current location of all pipelines and other components of Energas' natural gas distribution facilities located in the City. Section 4.14. Separate Contracts. Energas shall, upon written request from the City, furnish to the City a copy of any sales or transportation contract between Energas and any industrial or other large volume consumer described in Section 3.1 of Article III of thiS ordinance. Section 4.15. Bond for Removal of Gas System. Energas shall, upon electing to remove all or any portion of the gas system in accordance with with Section 3.6 of Article III of this ordinance, file with the Secretary of the City a bond in reasonable amount and with a proper and adequate surety, securing Energas' obligation to 13 of 20 promptly repair, at Energas' sole expense, any damage to any real property owned or controlled by the City caused by Energas' removal of all or any portion of the gas system and to restore such property to substantially the same condition it was in immediately prior to the incident causing such damage. ARTICLE V RIGHTS OF THE CITY Section 5.1. Use of City Property. The right of Energas hereunder to use any streets, roads, highways, alleys, and public ways owned or controlled by the City shall in no way affect the right of the City or its agents to maintain, construct, lay, repair, remove, replace, install, or operate any pavement, curbs, gutters, or underground wires, cables, or water or sewer pipes owned by the City and located on or near such streets, roads, highways, alleys, and public ways. Section 5.2. Inspection of Books and Records. The City may, at its sole expense and, upon twenty-four (24) hours prior notice, at any reasonable time during normal business hours, inspect and copy any of Energas' books and records, wherever located, pertaining to and directly affecting the rights of the City arising under or by virtue of this ordinance. 14 of 20 ARTICLE VI REMEDIES UPON DEFAULT BY ENERGAS Section 6.1. Termination of Franchise and Rights. In the event of a substantial and a material breach by Energas of the terms and provision of this ordinance, the City may terminate the franchise and rights granted to Energas hereunder, provided, however, that such termination shall not be effective unless and until the procedures described below have been followed: (a) The City mUst deliver to Energas, by certified or registered mail, a written notice signed by the Mayor, attested by the Secretary, and sealed with the official seal of the City. Such notice must (i) fairly and fully set forth in detail each of the alleged acts or omissions of Energas that the City contends constitutes a substantial and material breach of the terms and conditions hereof, (ii) designate which of the terms and conditions hereof the City contends Energas substantially and materially breached, and (iii) specify the date, time, and place at which a public hearing will be held by the City Council for the purpose of determining whether the allegations contained in the notice did in fact occur, provided, however, that the date of such hearing may not be less than thirty (30) days after the date of such notice. (b) Within ten (10) days following the adjournment of the public hearing described in subsection 6.1(a) above, the City must deliver to Energas, by certified or registered mail, a written notice signed by the Mayor, attested by the Secretary, and sealed with the official seal of the City, setting forth (i) the acts and omissions of Energas described in the first notice that the City 15 of 20 Council determines to have in fact occurred and (ii) the specific terms and conditions of this ordinance listed in the first notice that the City Council determines to have in fact been substantially breached by such acts or omissions of Energas. (c) The City must permit Energas the opportunity to substantially correct all of the breaches hereof set forth in the written notice described in subsection 6.1(b) above within sixty (60) days after Energas' receipt of such notice. Section 6.2. Civil Penalty. In lieu of terminating the franchise and rights granted herein pursuant to Section 1 of this Article VI, the City may, in the event of a substantial and material breach by Energas of the terms and conditions of this ordinance, charge and collect from Energas a civil penalty of five hundred dollars ($500.00) per day for each breach by Energas hereof, provided, however, that the City shall first have furnished to Energas the notices, right to public hearing, and opportunity to cure described in Section 6.1 of this Article VI. ARTICLE VII GENERAL PROVISIONS Section 7.1. Force Majeure. Notwithstanding anything expressly or impliedly to the contrary contained herein, in the event either the City or Energas is unable to comply with any obligation or undertaking, contained herein by reason of any event of force majeure, then, while so prevented, compliance with such 16 of 20 obligations or undertakings shall be suspended, and the time during which such party is so prevented shall not be counted against such party for any reason. The term "force majeure," as used herein, shall mean any cause not reasonably within the control of the party unable to comply with its obligation or undertaking hereunder and includes, but is not limited to, acts of God, strikes, lock-outs, wars, riots, orders or decrees of any lawfully constituted federal, state, or local body, contagions or contaminations hazardous to human life or health, fires, storms, floods, wash-outs, explosions, breakage or accident to machinery or lines of pipe, inability to obtain or delay in obtaining rights-of-way, materials, supplies, or labor permits, temporary failures of gas supply, or necessary repair, maintenance, or replacement of facilities used in the performance of the obligations contained in this ordinance. Section 7.2. Other Ordinances. Except to the extent otherwise expressly provided herein, the franchise and rights granted hereby and the operations and activities performed by Energas pursuant hereto shall be subject to all valid Ordinances and regulations of the City and any valid amendments thereto insofar as, and only insofar as, such ordinances and regulations (i) do not shorten the term hereof or terminate, abrogate, or materially and adversely affect the franchise and rights granted to Energas hereby or (ii) do not conflict with or are not inconsistent with the terms and provisions contained in this ordinance, such conflicting or inconsistent ordinances hereby being repealed to the extent of such conflict or inconsistency. Energas agrees that Ordinance No. 17 of 20 87-2732 as passed and approved on November 10,1987, is not in conflict or inconsistent with the provisions of this ordinance. Section 7.3. Amendments. This ordinance and the franchise and rights granted herein may be amended only by written agreement of the City and Energas to such amendment. Provided, however, that a written agreement shall not be required for any increase in the franchise fee made in accordance with Section 4.1 (a). Section 7.4. Severability. In the event any part of this ordinance is determined to be invalid or illegal for any reason whatsoever, such invalidity or illegality shall not affect the validity or legality of this ordinance as a whole or of any other parts hereof. Section 7.5. Bindinq Effect. This ordinance shall extend to, be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. Section 7.6. Effective Date. This ordinance shall become effective as of 8:00 a.m. on the day immediately following the day on which this ordinance is finally adopted by the City in accordance with law, subject, however, to Energas' filing with the Secretary of the City, within thirty (30) days after the date of final adoption of this ordinance, of a letter stating that Energas accepts this ordinance as adopted and agrees to comply with and be bound by all 18 of 20 222 of the terms and conditions hereof. A true and correct copy of this ordinance as adopted and agrees to comply with and be bound by all of the terms and conditions hereof. A true and correct copy of this ordinance as finally adopted shall be attached to such letter and by reference made a part thereof, and the letter shall be addressed to the Mayor and City Commission or Council of the City, dated, and executed by an authorized officer of Energas. Section 7.7. Section and Other ~eadinqs. The section and other headings contained in this ordinance are for reference purposes only and shall not affect in any way the meaning or interpretation of this ordinance. Section 7.8. Save ~armless. Energas, at its sole cost and expense, shall indemnify and save the City harmless from all claims, demands or causes of action, including attorney's fees and expenses of litigation against the City for injury to persons or property arising out of the construction, reconstruction, maintenance, repair, or operation by Energas or its employees or agents of Energas' gas system. Nothing in the foregoing sentence shall obligate Energas to indemnify the City for any such claims, demands, or causes of action for injury to persons or property arising, either wholly or partially, out of any action or failure to act by the City or its employees or agents. 19 of 20 " 23 Section 7.9. Jurisdiction. This franchise agreement shall be construed under and in accordance with the laws of the State of Texas, and all obligations of the parties hereunder are performable in Hale County, Texas. Section 7.10. Assiqnment. The franchise and rights granted herein shall not be assignable except with the consent of the City, which consent shall not be unreasonably withheld. PASSED AND APPROVED ON FIRST READING THIS THE Z6.th day of PASSED ~D APPROVED ON SECOND AND FINAL READING THIS THE ~ day of ~/~£~ , 1987. ATTEST: CITY OF PLAINVIEW, TEXAS Mayor ATTEST: AS TO ~ONTENT: CITY OF PLAINVIEW, TEXAS Mayor David Blackburn, Assistant City Attorney 20 of 20 37 TH, THUNDERBIRD ELEMENTARy ~ 26 'BALL STADIUM CAS] Plainview Industrial Foundation P.O. Box 1757 Plainview, Texas 79072 ' .............. ~n~-- ~ibleib., -- G~erai ' ~a~ ..... KAYS, INC., KVOP-KATX P.O. Box 1420 Plainview, Texas 79072 . Harry Ray Bryant Rt. 3 Plainview, Texas 79072 Wal-Mart Properties % Wal-Mart Properties 701 S. Walton Blvd. Bentonville, Arkansas Merlin Bennett State Department of Highways & Public. TransPortation. P.O. Box 148 .-- 79073-0148 Plainview, Texas .S~ears and Morton % Loyd Morton 411 Mesa Plainview, Texas 79072 Bob Kirk Energas Company 113 Wo 8th Plainview, Texas 79072 Alan Higgins ..... Southwestern Public serVice ..... Plainview, Texas 79072 ' : . ' J..L'. West, Manager-Community Relations - Southwestern Bell .. ... 916 Denver Plainview, Texas 79072 .T;C. Wall High Plains Concrete, Inc. 3200 N.W. Canyon Street Plainview, Texas 79072 Biit:'Hogge Director of Public Works City of Plainview