OR 2015-1416 Atmos Franchise
ORDINANCE NO: 2015-1416
AN ORDINANCE GRANTING TO ATMOS ENERGY CORPORATION, A TEXAS AND
VIRGINIA CORPORATION, ITS SUCCESSORS AND ASSIGNS, A FRANCHISE TO
CONSTRUCT, MAINTAIN, AND OPERATE PIPELINES AND EQUIPMENT IN THE
CITY OF COPPELL, TEXAS, FOR THE TRANSPORTATION, 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; PROVIDING FOR A TERM AND EFFECTIVE DATE; PROVIDING FOR
WRITTEN ACCEPTANCE OF THIS FRANCHISE; PROVIDING THAT THE MEETING
AT WHICH THIS ORDINANCE IS PASSED IS OPEN TO THE PUBLIC; PROVIDING
FOR SEVERABILITY; AND ORDAINING OTHER PROVISIONS RELATED TO THE
SUBJECT MATTER HEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COPPELL, TEXAS:
SECTION 1. GRANT OF AUTHORITY.
A. The City of Coppell, Texas, hereinafter called “City,” hereby grants to Atmos
Energy Corporation, Mid-Tex Division, hereinafter called “Atmos Energy” or “Company,” its
successors and assigns, consent to use and occupy the present and future streets, alleys, highways,
public utility easements, public ways and other public places (“Public Rights-of-Way”), for the
purpose of laying, maintaining, constructing, protecting, operating, and replacing therein and
thereon pipelines and all other appurtenant equipment (the “System”) to deliver, transport, and
distribute 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.
B.Said consent being granted for a term ending September 30, 2035.
C. The provisions set forth in this Ordinance represent the terms and conditions under
which Atmos Energy shall construct, operate, and maintain the System within City, hereinafter
sometimes referred to as the “Franchise.” In granting this Franchise, 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 ordinances of City, including but not limited to generally
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applicable ordinances regulating the use of Public Rights-of-Way. 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 City shall be in full force and effect and subject to the exercise thereof by
City at any time.
SECTION 2. 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. “Affiliate” shall mean in relation to Company, a Person that controls, is controlled
by, or is under common control with 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.
b. “City” shall mean the City of Coppell, Texas.
c. “Company” shall mean Atmos Energy Corporation, Mid-Tex Division, 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 16.
d. “Gross Revenues" shall mean:
(1) all revenues received, by Company from the sale of gas to all classes of
customers (excluding gas sold to another gas utility in the City for resale to its customers
within City) within the City;
(2) all revenues received 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);
(3) the value of gas transported by Company for Transport Customers through
the System of Company within the City (“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
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Cost of Gas charged to industrial customers in the Mid-Tex division, as reasonably near
the time as the transportation service is performed; and
(4) “Gross Revenues” shall also include fees paid pursuant to this agreement,
revenues billed but not ultimately collected or received by Company, and the following
“miscellaneous charges”: charges to connect, disconnect, or reconnect gas, contributions
in aid of construction, charges to handle returned checks from consumers within the City,
and State gross receipts fees. “Miscellaneous charges” may include certain other service
charges that have, from time to time, been authorized in the rates and charges on file with
the City. Any such service charge not already described in Section 2.d.(4) will be included
in the definition of Gross Revenues upon the mutual agreement of City and Company.
(5) “Gross Revenues” shall not include:
(A) the revenue of any Affiliate or subsidiary of Company;
(B) sales tax paid to the City;
(C) interest or investment income earned by Company; and
(D) monies received from the lease or sale of real or personal property,
provided, however, that this exclusion does not apply to the lease of System
Facilities within the 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 City or any employee, agent,
servant, representative or official of City.
f. “Public Right-of-Way” shall mean public streets, alleys, highways, bridges, public
easements, public places, public thoroughfares, grounds, and sidewalks of City, as they now exist
or may be hereafter constructed, opened, laid out, or extended within the present limits of City, or
in such territory as may hereafter be added to, consolidated, or annexed to City.
g. “System” or “System Facilities” shall mean all of 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.
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h. “Transport Customer” shall mean any Person for which Company transports gas
through the System of Company within the Public Right-of-Way for delivery within the City
(excluding other gas utilities in City who resell gas to their customers within City).
SECTION 3. CONSTRUCTION, MAINTENANCE, OPERATION & RELOCATION OF
COMPANY SYSTEM FACILITIES.
A.All construction, reconstruction, expansion, repairs, excavation, or other work
performed by Company, and all of Company’s System installed in Public Right-of-Way, shall be
in accordance with all generally applicable City Codes and Ordinances, including City standard
construction details applicable to the construction of public improvements, the subdivision
regulations and tree preservation ordinances and the Comprehensive Zoning ordinance, as may be
hereafter adopted or amended. Company shall be responsible for all repairs and maintenance
resulting from any defects, impairments, or other substandard conditions of City property,
including any disturbed, damaged or destroyed landscaping material, caused by the construction,
maintenance, expansion, reconstruction, operation or use of City property by Company.
B.Upon request of the City, Company shall remove and abate any portion of the
System that is dangerous to life or property in accordance with any applicable law. Company shall
operate and maintain its System and its related Facilities in material compliance with applicable
federal, state, and local laws governing natural gas facilities.
C.Company or contractors working on behalf of Company shall be required to obtain
permits for construction in Public Rights-of-Way as provided in City ordinances, but shall not be
required to pay for such permits.
D.The City’s annual capital improvements plan as well as any updates or changes as
soon as the plan, update, or change will be made available to Company. City shall notify Company
as soon as reasonably possible of any projects that will affect Company’s System Facilities located
in the Public Rights-of-Way.
E.The City reserves the right to lay, and permit to be laid, any City-owned facilities,
such as stormwater, sewer, gas, water, wastewater and other pipe lines, cable, and conduits, or
other improvements and to do and permit to be done any underground or overhead work that may
be necessary or proper in, across, along, over, or under Public Rights-of-Way occupied by
Company. The City also reserves the right to change in any manner any City-owned curb,
sidewalk, highway, alley, public way, street, and City-owned utility lines, storm sewers, drainage
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basins, drainage ditches, and other City facilities. If City damages Company’s Facilities while
doing work on City facilities, Company shall repair any such damage at City’s expense. Likewise,
if Company damages any City facilities while doing work on Company Facilities, City shall repair
any such damage at Company’s expense.
F.When Company is required by City to remove or relocate its mains, laterals, and
other facilities lying within Public Rights-of-Way to accommodate a request by City, and costs of
utility removals or relocations are eligible under federal, state, county, local, or other programs for
reimbursement of costs and expenses incurred by Company as a result of such removal or
relocation, and such reimbursement is required to be handled through City, Company costs and
expenses shall be included in any application by City for reimbursement if Company submits its
cost and expense documentation to City prior to the filing of the application. City shall make all
reasonable efforts to provide reasonable written notice to Company of the deadline for Company
to submit documentation of the costs and expenses of such relocation to City in order for City to
be able to submit its application for reimbursement to such program in a timely manner. Upon
receipt of an amount of reimbursement intended for utility relocation including, but not limited to,
gas utilities, City shall remit to Company, within sixty (60) days of receipt, the portion of
reimbursement related to the relocation or removal of Company’s facilities. If Company is required
by City to remove or relocate its mains, laterals, or other System Facilities lying within Public
Rights-of-Way to accommodate a private developer or for projects whose primary purpose is
beautification or for any reason other than the construction, reconstruction, improving, widening,
or straightening of its Public Right-of-Way, sewers, drainage, water lines, or other utilities by City,
Company shall be entitled to reimbursement from City or others of the cost and expense of such
removal or relocation.
G.When Atmos Energy is required to remove or relocate its mains, laterals or other
System Facilities to accommodate construction by City without reimbursement from City, Atmos
Energy shall have the right to seek recovery of relocation costs as provided for in applicable state
and/or federal law. Nothing herein shall be construed to prohibit, alter, or modify in any way the
right of Atmos Energy to seek or recover a surcharge from customers for the cost of relocation
pursuant to applicable state and/or federal law, nor shall anything herein be construed to waive
City’s rights or obligations under state and/or federal law to review and approve or deny such
surcharge request. Notwithstanding the foregoing, in cases where the Company is seeking to
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implement a surcharge to recover unreimbursed costs of relocations required by City, City shall
not contest the necessity of the relocation, nor shall it demand documentation of Company’s
reasonable efforts to receive reimbursement for relocations required by City. City shall not oppose
recovery of reasonable relocation costs when Company is required by City to perform relocation.
Notwithstanding the foregoing, the City shall have the right to request other project documentation
to the full extent provided by state law.
H.If City abandons any portion of the Public Rights-of-Way in which Atmos Energy
has System Facilities, for public safety reasons or in furtherance of a public project, City shall
determine whether it is appropriate to retain a public utility easement in such Public Right-of-Way
for use by Company. If City determines, in its sole discretion, that the continued use of the Public
Right-of-Way by Company is compatible with the abandonment of the Public Right-of-Way, then
in consideration of the compensation set forth in Section 12, and to the maximum extent of its right
to do so, City shall grant Company an easement for such use, and the abandonment of the Public
Right-of-Way shall be subject to the right and continued use of Company. If City determines, in
its sole reasonable discretion, that it is not appropriate to retain a public utility easement in such
Public Right-of-Way, Company shall be responsible, subject to the provisions of Section 3, for
relocating its System from such Public Right-of-Way, as directed by City. If Public Right-of-Way
is sold, conveyed, abandoned, or surrendered by City to a third party, such action shall be
conditioned upon Company’s right to maintain use of the former Public Right-of-Way. If the third
party requests Company to relocate its System from the former Public Right-of-Way, and if such
relocation is agreed to by Company, such relocation shall be at the expense of the party requesting
same. In addition, in the event of a third party requesting the relocation, if the 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 4. LAYING OF LINES IN ADVANCE OF PAVING.
A. Whenever City shall conclude to pave any Public Right-of-Way in which
Company’s System Facilities already exist or in which Company may propose to install its System
Facilities, Company will be provided the opportunity, at no expense to City, in advance of such
paving to renew such System Facilities, if defective or inadequate in size, and to lay System
Facilities, or renew same, if inadequate in size or defective, to the property lines where buildings
are already located.
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B. At least ninety (90) calendar days prior to the planned paving or repaving of Public
Rights-of-Way, City shall give Company written notice of the intention of City to pave any such
Public Right-of-Way. Upon receipt of such notice, Company shall initiate its review process to
determine the need to renew its System Facilities, and the need to lay or renew service lines
underneath the portions of the Public Rights-of-Way to be paved. If Company determines such a
need, Company shall promptly initiate such work and shall thereafter proceed in a good faith and
workmanlike manner to completion of the necessary work within ninety (90) calendar days after
receipt of the notice from the City. Company’s failure to complete the necessary work within the
ninety (90) day period may be excused at the City’s discretion, if Company has promptly notified
the City of the circumstances that have caused the delay, and has requested an extension of the
construction period. City shall grant the extension unless withheld for good cause.
C. If Company should fail to take advantage of the pre-paving opportunity to
undertake new construction or repairs to existing System Facilities in the Public Rights-of-Way to
be paved, and such street or alley is thereafter paved, except in an emergency or in response to a
request for initiation of new service, 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, except by written
permission of the City under such terms and conditions as the City may prescribe.
SECTION 5. LIABILITY INSURANCE.
Company shall, at its sole cost and expense, obtain, maintain, or cause to be maintained,
and provide, throughout the term of this Franchise, insurance in the amounts, types and coverages
in accordance with the following requirements. Such insurance may be in the form of self-
insurance to the extent permitted by applicable law or by obtaining insurance, as follows:
A. Commercial general or excess liability on an occurrence or claims made form with
minimum limits of five million dollars ($5,000,000) per occurrence and ten million dollars
($10,000,000) aggregate. This coverage shall include the following:
(1) Products/completed operations to be maintained for a warranty period of 2 years,
(2) Personal and advertising injury,
(3) Contractual liability, and
(4) Explosion, collapse, or underground (XCU) hazards.
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B. Automobile liability coverage with a minimum policy limit of one million dollars
($1,000,000) combined single limit each accident. This coverage shall include all owned, hired,
and non-owned automobiles.
C. Workers compensation and employers liability coverage. Statutory workers
compensation benefits in accordance with the statutes and regulations of the State of Texas.
Company must provide the City with a waiver of subrogation for workers compensation claims.
D. Any contractors or subcontractors working in the Public Right-of-Way on behalf
of Company are agents of Company. Company shall remain the responsible party for damage to
and/or in the Public Right-of-Way resulting from any work of Company or its agents. City shall
submit claims for any such damage to the Public Right-of-Way to Company. Upon request,
Company shall provide the City with proof of insurance for any of Company’s contractors or sub-
contractors that perform work in the Public Right-of-Way.
E. The Company will provide proof of insurance in accordance with this Franchise
within thirty (30) days of the effective date of the Franchise. Company will not be required to
furnish separate proof when applying for permits.
SECTION 6. EXTENSIONS FOR CUSTOMERS.
Company shall, at its expense, 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 7. DUTY TO SERVE.
Company shall not arbitrarily refuse to provide service to any Person having a service
location within the City and meeting Company’s reasonable credit requirements that it is
economically feasible for Company to serve. In the event that a Person is refused service, said
Person may request a hearing before the City Council of City or its designee, said hearing to be
held within forty-five (45) days from the date of the request for hearing. The Council may order
Company to provide service or take any other action necessary to bring Company into compliance
with the intent of the Council in granting this Franchise, including termination or forfeiture of the
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Franchise in accordance with Section 14. The Council may render its opinion at this meeting but
in no event shall it be required to act in less than fourteen (14) days.
SECTION 8. CUSTOMER SERVICE STANDARDS; LOCAL OFFICE.
A. Company shall maintain a local, toll-free or collect call telephone access line which
will be available to its customers 24 hours a day, seven days a week.
B. Company shall make a good faith effort to maintain within City one or more
locations where customers can pay their bills. In no circumstance shall the absence of such a
location be considered violation of a material provision of this Franchise as outlined in Section 14.
SECTION 9. RATES.
Company’s rates and charges shall be established and shall be subject to revision and
change in accordance with all applicable statutes and ordinances. Company shall maintain on file
with City copies of its current tariffs, schedules or rates and charges, customer service provisions,
and line extension policies.
SECTION 10. INDEMNITY.
A. In consideration of the granting of this Franchise, Company agrees to indemnify,
defend, and hold harmless City, its officers, agents, 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; except that the indemnity
provided for in this paragraph shall not apply to the extent any liability is determined to have
resulted from negligence or intentional acts or omissions of City, its officers, agents, and
employees. In the event of joint and concurrent negligence or fault of both Company and City,
responsibility and indemnity, if any, shall be apportioned comparatively in accordance with the
laws of the State of Texas without, however, waiving any of the defenses of the parties under Texas
law. Further, in the event of joint and concurrent negligence or fault of both Company and City,
responsibility for all costs of defense shall be apportioned between City and Company based upon
the comparative fault of each.
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B. In fulfilling its obligation to defend and indemnify City, Company shall have the
right to select defense counsel, subject to City’s approval, which shall not be unreasonably
withheld. Company shall retain defense counsel within seven (7) business days of City’s written
notice that City is invoking its right to indemnification under this Franchise. If Company fails to
retain counsel within such time period, City shall have the right to retain defense counsel on its
own behalf, and Company shall be liable for all defense costs incurred by City, except as set out
in Section 10.A.
C. 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 purchased for the sole purpose of insuring Company’s obligations pursuant to this
agreement will name the City as an additional insured up to the amounts required by City’s
ordinance.
SECTION 11. NON-EXCLUSIVE FRANCHISE.
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 12. PAYMENTS TO 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 Section 12.B., such payments shall be
st
made on a quarterly basis, on or before the 1 day of December, 2015, and on or before the 1st day
of March, June, September, and December during the term of this franchise. The last payment
st
under the initial term being made on the 1 day of September, 2035. The franchise fee shall be a
sum of money that shall be equivalent to five percent (5%) of the quarterly Gross Revenues, as
defined in Section 2 above, received by Company during the preceding calendar quarter.
B.The franchise fee amounts based on “Contributions in Aid of Construction”
(“CIAC”) shall be calculated on an annual calendar year basis, i.e., from January 1 through
December 31 of each calendar year. The franchise fee amounts that are due based on CIAC shall
be paid at least once annually on or before April 30 each year based on the total CIAC recorded
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during the preceding calendar year. The initial CIAC franchise fee payment will be due on or
before April 30, 2016, and will be based on CIAC received from January 1, 2015, through
December 31, 2015. The final payment of franchise fee amounts based on CIAC will be April 1,
2036, for the calendar year ending December 31, 2035.
C.The initial payment for the rights and privileges herein provided shall be for the
privilege period October 1, 2015, through December 31, 2015, and each succeeding payment shall
be for the privilege period of the calendar quarter in which the payment is made.
D.It is also expressly agreed that the aforesaid payments shall be in lieu of any and all
other and additional occupation taxes, easement, franchise taxes or charges (whether levied as an
ad valorem, 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. Except however, Company’s separate obligations to reimburse the City for
City’s reasonable rate case expenses and for street repairs in accordance with City’s ordinances,
are not affected by Company’s payment of franchise fees hereunder. If the City does 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, easement or franchise taxes or charges
aforesaid, 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 any such occupation taxes, licenses,
charges, fees, or rentals.
E. If Company fails to pay when due any payment provided for in this Section,
Company shall pay such amount plus interest consistent with the rate for customer deposits under
Texas Utilities Code Section 183.003 from such due date until payment is received by City.
F. Atmos Energy Franchise Fee Recovery Tariff
(1) Company may file with the City a tariff or tariff amendment(s) to provide
for the recovery of the franchise fees under this agreement.
(2) City agrees that (i) as regulatory authority, it will adopt and approve the
ordinance, rates, or tariff which provide for 100% recovery of such franchise fees as part
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of Company’s rates; (ii) if the City intervenes in any regulatory proceeding before a federal
or state agency in which the recovery of Company’s franchise fees is an issue, the City will
take an affirmative position supporting 100% recovery of such franchise fees by Company
and; (iii) in the event of an appeal of any such regulatory proceeding in which the City has
intervened, the City will take an affirmative position in any such appeals in support of the
100% recovery of such franchise fees by Company; and (iv) 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.
G. This Franchise is granted solely to Company. Company is not authorized to license
or lease to any person or entity the right to occupy and use any Public Right-of-Way for any private
business or other purpose. Transportation service provided by Company to or for others shall not
be considered a licensing or leasing of any right to occupy and use any Public Right-of-Way.
H. City shall endeavor to, within thirty (30) days of final approval and submission to
the Texas Comptroller of Public Accounts, give Company notice of annexations and
disannexations of territory by 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 City. In no
event shall the Company be required to add premises for the purposes of calculating franchise
payment prior to the earliest date that the same premises are added for purposes of collecting sales
tax. Upon request from City, Company will provide documentation to verify that affected
customers were appropriately reclassified and included for purposes of calculating franchise
payments.
SECTION 13. 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.
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 said City to ascertain the correctness of the
reports agreed to be filed herein. Company shall make available, during normal working hours and
upon reasonable notice, such personnel and records as City may in its reasonable discretion request
in order to complete such audit, and shall make no charge to the City therefor. Company shall
assist City in its review by providing all requested information no later than fifteen business (15)
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days after receipt of a request. The cost of the audit shall be borne by 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 immediately reimbursed to the City by the Company. If such an
examination reveals that Company has underpaid City, then upon receipt of written notification
from City regarding the existence of such underpayment, Company shall undertake a review of
City’s claim and if said underpayment is confirmed, remit the amount of underpayment to City,
including any interest calculated in accordance with Section 12.E. 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 including any interest calculated in accordance with Section 12.E.
C. If the Company provides confidential or proprietary information to the City, the
Company shall be solely responsible for identifying such information with markings calculated to
bring the City’s attention to the proprietary or confidential nature of the information. The City
agrees to maintain the confidentiality of any non-public information obtained from Company so
designated to the extent allowed by law. City shall not be liable to Company for the release of any
information the City is required to release by law. If the City receives a request under the Texas
Public Information Act that includes Company’s proprietary or confidential information, City will
notify the Texas Attorney General of the proprietary or confidential nature of the document(s).
The City also will provide Company with a copy of this notification, and thereafter Company is
responsible for establishing that an exception under the Texas Public Information Act allows the
City to withhold the information.
SECTION 14. TERMINATION.
A. Right to Terminate. In addition to any rights set out elsewhere in this Ordinance,
City reserves the right to terminate the Franchise and all rights and privileges pertaining thereto,
in the event that Company violates any material provision of the Franchise.
B. Procedures for Termination.
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(1) City may, at any time, terminate this Franchise for a continuing material
violation by Company of any of the substantial terms hereof. In such event, City shall give
to Company written notice, specifying all grounds on which termination or forfeiture is
claimed, by registered mail, addressed and delivered to Company at the address set forth
in Section 15.A. hereof. 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 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 Company is afforded the full opportunity
to be heard and to respond to any such notice of violation or failure to comply. Company
shall be provided at least fifteen business (15) days prior written notice of 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.
(3) 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 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 City from seeking to compel compliance
by suit in any court of competent jurisdiction if 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
SECTION 15. NOTICES.
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5033767.1
A. 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: (i) delivered in person to the address set forth below; (ii) 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 (iii) delivered to such party by
courier receipted delivery. Either party may designate another address within the confines of the
continental United States of America for notice, but until written notice of such change is actually
received by the other party, the last address of such party designated for notice shall remain such
party’s address for notice.
CITY
City Manager
City of Coppell
P.O. Box 9478
Coppell, Texas 75019-9478
COMPANY
Manager of Public Affairs
Atmos Energy Corporation, Mid-Tex Division
3697 Mapleshade Lane
Plano, Texas 75075
B. The Company shall provide to the City a local or toll-free telephone number that is
manned twenty-four (24) hours a day, seven (7) days a week to provide available information
relating to emergency situations. The City understands that this telephone number is not equipped
to handle calls from the public, and the City will not provide this number to customers, but will
direct them to the Company's Call Center. If the Company cannot timely respond to an emergency
with Company employees, the Company will attempt to respond to the emergency with qualified
local contractors. The Company's contact information shall be kept current at all times. The
Company and the City shall periodically, and upon request by either party, meet to discuss and
address emergency response issues, in order to rectify any problems identified by either party.
SECTION 16. SUCCESSORS AND ASSIGNS.
The Company may, without consent by City, transfer or assign the rights granted by this
Franchise to an Affiliate. Company shall give prior written notice to City of such intended transfer
or assignment, and shall provide in such notice identifying information of the Affiliate, including
Page 15
5033767.1
contact information for routine and emergency matters. City will otherwise have the right to
approve the transfer or assignment of the franchise to a non-Affiliate. City shall grant approval
unless the assignee is materially weaker than the Company. For the purpose of this section,
“materially weaker” means that the long term unsecured debt rating of the assignee is less than
investment grade as rated by both S&P and Moody’s. The City may request additional documents
and information reasonably related to the transaction and to the legal, financial, and technical
qualifications of the assignee. City agrees that approval of a transfer or assignment to a non-
Affiliate that is materially weaker shall not be unreasonably withheld or delayed. The terms and
conditions contained in this Ordinance shall be binding upon Company, its successors, and assigns.
Upon request by City, Company shall require its successor, transferee, or assignee to provide City
with a written express assumption of all rights and obligations under this Franchise.
SECTION 17. 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 18. NO WAIVER.
Either City or 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 19. 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.
Page 16
5033767.1
SECTION 20. ACCEPTANCE OF FRANCHISE.
City shall provide Company with a certified copy of this Franchise by certified mail within
five (5) days of passage. In order to accept this Franchise, Company must file with the City
Secretary its written acceptance of this Franchise Ordinance within thirty (30) days after its final
passage and approval by City. If such written acceptance of this Franchise Ordinance is not filed
by Company, the Franchise Ordinance shall be rendered null and void.
SECTION 21. 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 22. EFFECTIVE DATE.
This Franchise shall be effective on October 1, 2015, if City has received Company’s
acceptance as provided by Section 20 herein.
Page 17
5033767.1
DULY PASSED by the City Council of the City of Coppell, Texas,this the D day of Sev-k c'
2015.
ATTEST: APPRt VED:
/
ia,i2V.- /Alai la 1.1
hristel Pettinos, Cit Secretary K. en Selbo Hunt, Mayer
City of Coppell, Texas
APPRO , D AS O FORM:
',/ %4 /
L/
City Attorney /
STATE OF TEXAS §
COUNTY OF DALLAS §
CITY OF COPPELL §
I,Christel Pettinos,City Secretary of the City of Coppell,Denton County,Texas,do hereby
certify that the above and foregoing is a true and correct copy of an ordinance passed by the City
Council of the City of Coppell, Texas, at a session, held on the day
of -c -,-- , 2015, as it appears of record in the Minutes in Book 401 5" ,
page .
WITNESS MY HAND AND SEAL OF SAID CITY, this the 1 Qday of
c,€,Sfe..„,1.ae_c- , 2015.
. A_ �I._�—/ 1k/moi.-�
I ' hristel Pettinos, • ty Secretary
rtq City of Coppell, Texas
�I. May 10.201E!
Page 18
5033767.1
STATE OF TEXAS §
§
COUNTY OF DALLAS §
WHEREAS, there was finally passed and approved on September 8, 2015,
Ordinance No. 2015-1416 granting to Atmos Energy Corporation, its successors and
assigns, a franchise to furnish and supply gas to the general public in the City of
Coppell, Dallas County, Texas, for the transporting, delivery, sale and distribution of
gas in, out of and through said municipality for all purposes, which is recorded in the
Minutes of the City Council of said City; and
WHEREAS, Section 20 of said ordinance provides:
"SECTION 20. ACCEPTANCE OF FRANCHISE. City shall provide
Company with a certified copy of this Franchise by certified mail within
five (5) days of passage. In order to accept this Franchise, Company must
file with the City Secretary its written acceptance of this Franchise
Ordinance within thirty (30) days after its final passage and approval by
City. If such written acceptance of this franchise ordinance is not filed by
Company, the Franchise Ordinance shall be rendered null and void."
AND, WHEREAS, it is the desire of Atmos Energy Corporation, the holder of the
rights, privileges and grants under the aforesaid franchise ordinance, to comply with
the above-quoted provisions of Section 20 thereof.
NOW, THEREFORE, Atmos Energy Corporation, acting by and through its duly
authorized officers, does hereby agree to and accept the franchise granted to it by the
above-described ordinance, in accordance with its terms, provisions, conditions and
requirements and subject to the stipulations and agreements therein contained.
WITNESS THE EXECUTION HEREOF, on this the 6th day of October, 2015.
Atmos Energy Corporation
LSLL
Vice President, Mid-Tex Division
STATE OF TEXAS §
COUNTY OF DALLAS §
CITY OF COPPELL §
I, Christel Pettinos, City Secretary of the City of Coppell, Texas, do hereby certify
that the above and foregoing is a true and correct copy of a formal acceptance of a
franchise ordinance finally passed and approved by said City on September 8, 2015,
and of record in the Minutes of the City; and I do further certify that said acceptance
has been duly presented to the City Council and filed in connection with and as a part
of said franchise ordinance.
V.1.
OF WHICH, witness my of ficial signature and the seal of said City on this the
day of �"e r , 2015.
QielPetySecethry
City of Coppell, Texas