Atmos-CN960213su-
AN ORDINANCE OF THE CITY OF COPPELL, TEXAS
ORDINANCE NO. _2,L7y,5
AN ORDINANCE OF THE CITY OF COPPELL, TEXAS, GRANTING TO LONE
STAR GAS COMPANY, A DIVISION OF ENSERCH CORPORATION, A TEXAS
CORPORATION, A FRANCHISE FOR THE PURPOSE OF CONSTRUCTING,
MAINTAINING, AND USING A GAS UTILITY SYSTEM IN THE CITY OF
COPPELL, TEXAS PROVIDING CONDITIONS GOVERNING THE
CONSTRUCTION, EXPANSION, USE, RELOCATION, AND OPERATION OF THE
GAS UTILITY SYSTEM; PROVIDING FOR INDEMNIFICATION; PROVIDING
FOR COMPENSATION; PROVIDING FOR ACCOUNTING AND OTHER
REPORTS; PROVIDING FOR THE CONDITIONS OF ASSIGNMENT;
PROVIDING FOR TERMINATION; PROVIDING FOR ACCEPTANCE OF THE
FRANCHISE; PROVIDING A REPEALING CLAUSE; PROVIDING A
SEVERABILITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, Lone Star Gas Company, a division of Enserch Corporation, currently
has a franchise in the City of Coppell, Texas, which authorizes said company to supply
customers in the City of Coppell with natural gas; and
WHEREAS, the current Franchise Agreement with Lone Star Gas Company expired
on September 10, 1995; and
WHEREAS, the Lone Star Gas Company and the City of Coppell, Texas mutually
agreed to extend the Franchise Agreement pending negotiation of a new Franchise
Agreement; and
WHEREAS, negotiations between Lone Star Gas Company and the City of Coppell,
Texas have been completed and the parties desire that a new Franchise Agreement to be
effective upon the expiration of the current Ordinance.
NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF COPPELL, TEXAS:
SECTION 1. PURPOSE.
(a) That there is hereby granted to Lone Star Gas Company, a division of
Enserch Corporation (hereinafter called "Grantee "), for a term of twenty (20)
years commencing on September 11, 1995, the non- exclusive privilege, to
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have, acquire, construct, reconstruct, extend, maintain, use, and operate in,
along, across, on, over, through, above, and under public streets, alleys,
highways, public places, public thoroughfares, and rights -of -way (hereinafter
called "City property ") in the City of Coppell, Texas (hereinafter called "City "),
a gas utility system, including, but not limited to a gas transmission and
distribution system and any associated equipment or other facilities necessary
to distribute, transport, or deliver gas in, out of, and through the City .
(b) Grantee shall not provide cable television services or operate a cable
television system as defined in the Cable Communications Policy Act of 1984
(47 U.S.C.A. § 521 et seq., as amended) as recognized by the Federal
Communications Commission (the FCC) without first obtaining a separate
franchise from the City. This franchise is granted solely to the Grantee.
Grantee is not authorized to license or lease to any person or entity the right
to occupy and use any of City property for any private business or other
purpose. Transportation service provided by Grantee to or for others shall
not be considered a licensing or leasing of any right to occupy and use any
City property.
SECTION 2. CONSTRUCTION AND MAINTENANCE.
Work done in connection with the construction, maintenance, expansion,
reconstruction, operation and use of the gas utility system and facility shall be subject to the
following conditions:
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(a) General
All construction, reconstruction, expansion, repairs, excavation, or other work
performed by Grantee, and all facilities of the Grantee, which are installed
within City property, 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. Grantee 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 Grantee.
(b) Permit and Approval
In accordance with generally applicable permitting City ordinances, Grantee
shall submit to an official of the City, as designated from time to time
proposed construction plans of all facilities, including sketches of piping
layouts, to be installed, reconstructed, repaired, or expanded in, on, above,
across, or under City property and any related street closure plans prior to the
issuance of any applicable permit and the commencement of such construction
or other work. City may require the submittal of a traffic control plan and
may also require all lanes to be open and available to the traffic during peak
hours. The City's designated representative shall review said plans and may
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require reasonable modifications in order to protect existing or anticipated
public improvements or other existing utilities. Grantee shall not be required
to obtain a permit prior to responding to emergency situations, but shall notify
the City within forty -eight (48) hours following the initiation of work on City
property in response to any emergency situation. Grantee and Grantee's
contractors shall not be required to pay any permit fees or provide any
performance bonds in connection with Grantee's work on City property.
(c) Traffic Control
The Grantee shall conduct all traffic control in accordance with the latest
version of the Texas Manual on Uniform Traffic Control Devices, as
amended.
(d) Restoration
The City and Grantee shall use all reasonable caution to avoid disturbing the
facilities of the other party. The surface of any City property disturbed by the
Grantee in the construction, relocation, or maintenance of any of its facilities
shall be restored to as good a condition as before commencement of the work
to the reasonable satisfaction of the City within a reasonable time after
completion of the work. If there is an unreasonable delay by Grantee in
restoring or maintaining City property after excavation, construction or repairs
have been made, the City shall have the right, after five (5) days' written
notice to Grantee, to restore or repair the same and to require the Grantee
to pay the reasonable costs of such work.
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(e) Compliance with Safety Laws
Upon request of the City, Grantee shall remove and abate any portion of the
utility system or any of its facilities that is dangerous to life or property in
accordance with any applicable law. Grantee shall operate and maintain its
utility system and its related facilities in material compliance with applicable
federal, state and local laws governing natural gas facilities.
(f) Maintenance of Piping
Grantee shall own, operate, and maintain all service lines, which are defined
as the supply lines extending from the Grantee's main to the customer's meter
where gas is measured by Grantee. The customer shall own, operate, and
maintain all yard lines and house piping. Yard lines are defined as the
underground supply lines extending from the point of connection with
Grantee's customer meter to the point of connection with the customer's
house piping. If any one residential customer of gas, at a minimum, uses gas
for unsupplemented space heating and water heating, Grantee shall be
required at its own expense to extend mains on any street up to one hundred
feet (100'). Grantee shall not be required to extend transmission mains on
any City property or to make a tap on any transmission main within City
unless Grantee agrees to such extension by a written agreement between
Grantee and a customer.
SECTION 3. OCCUPANCY CONDITIONS.
All facilities constructed, relocated, or maintained by Grantee within the City
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property shall be located so as to not unreasonably interfere with the use of such property
by the City or other utilities; and shall not unreasonably interfere with the rights of the
owners or occupiers of any adjoining property. Grantee shall not place any of its facilities
where the same will unreasonably interfere with any existing gas, electric, or telephone
fixture, water hydrant, or main, drainage facility, or sanitary sewer, or unreasonably interfere
with travel on or public use of the streets, alleys, or other City property.
SECTION 4. RELOCATION.
When the Grantee is required by City to remove or relocate its mains, laterals, and
other facilities to accommodate construction of streets, alleys, drainage improvements, water
line and /or sewer lines by City, and Grantee is eligible under federal, state, county programs
for reimbursement of costs and expenses incurred by Grantee as a result of such removal
or relocation, and such reimbursement is required to be handled through City, Grantee costs
and expenses shall be included in any application by City for reimbursement, if Grantee
submits its cost and expense documentation to City prior to the filing of the application,
City shall provide reasonable notice to Grantee of the deadline for Grantee to submit
documentation of the costs and expenses of such relocation to City. If the Grantee is
required by City to remove or relocate its mains, laterals, or other facilities for any reason
other than construction of City facilities, Grantee shall be entitled to reimbursement from
City or others of the cost and expense of such removal or relocation.
If City abandons any City property in which Grantee has facilities, such abandonment
shall be conditioned on Grantee's right to maintain its use of the former City property. If
the party to whom the City property is abandoned requests the Grantee to remove or
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relocate its facilities and Grantee 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 City property,
the expense of any right -of -way acquisition shall be considered a relocation expense to be
reimbursed by the party requesting the relocation.
SECTION 5. WORK BY OTHERS.
(a) The City reserves the right to lay and permit to be laid sewer, gas, water, and
other pipelines or cables and conduits 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 a City property occupied by Grantee. City also reserves
the right to change in any manner any curb, sidewalk, highway, alley, public
way or street, or the grade thereof. When City damages Grantee's facilities
while doing work on City facilities, Grantee shall repair any such damage at
City's expense. Likewise, when Grantee damages City's facilities while doing
work on Grantee's facilities, City shall repair any such damage at Grantee's
expense.
(b) In the event the City authorizes someone other than the Grantee to occupy
any City property, such grant shall be subject to the rights herein granted to
Grantee.
SECTION 6. REPORTS AND RECORDS.
(a) Grantee shall keep complete and accurate books of accounts and records of
its business and operations from which its gross receipts may be determined.
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Copies of relevant portions of such books of accounts and records shall be
available at the Grantee's office located in Dallas County, Texas. The City
shall have access to all books of accounts and records of Grantee relating to
this franchise as reasonably needed to determine the accuracy of any and all
reports related to the gross receipts. The City agrees to the extent allowed
by law that any confidential or proprietary matter shall not be disclosed by the
City, except as needed to enforce the City's rights under this ordinance. Upon
request, Grantee shall furnish the City with copies of Enserch Corporation's
annual audit reports of its financial statements by an independent certified
public accountant and 10K and 10Q Reports to the Securities & Exchange
Commission and shall make available for inspection by the City all reports
filed with the Railroad Commission of Texas or its successor. Upon request,
Grantee shall make such other special studies and furnish such other reports
as the City may reasonably require for the administration of this ordinance.
(b) The City shall have the right, at reasonable times, to inspect the plant,
equipment and other property of the Grantee and its affiliates to examine,
audit, and obtain copies of the papers, books, accounts, documents, and other
business records of the Grantee consistent with state law.
SECTION 7. QUALITY OF SERVICE.
Grantee shall at all times furnish service in a manner consistent with its Quality of
Service Rules, as amended from time to time, and as on file with the City.
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SECTION 8. FRANCHISE ADMINISTRATION.
(a) The City Manager, or his designee, is the principal City officer responsible for
the administration of this franchise and shall oversee and review the
operations of Grantee under this franchise.
(b) The City may delegate to the City Manager, or his designee, the exercise of
any powers conferred upon the City by its Charter or by law relating to the
regulation of Grantee and exercise of the rights and privileges conferred, by
this franchise, but the City Council reserves unto itself the exclusive power to
fix and regulate the general charges and rates of Grantee, to the full extent
that this authority is provided in the Charter, this franchise, and state law.
(c) It shall be the right and duty of the City Manager, or his designee, to keep
fully informed as to all matters in connection with or affecting the
construction, reconstruction, maintenance, operation, and repair of the
Grantee's gas utility system, its accounting methods and procedures, the
conduct of Grantee's business in the City, and of service being rendered by
the Grantee.
SECTION 9. SERVICE RATES.
(a) City Council hereby expressly reserves the right, power, and authority to fully
regulate and fix the rates and charges for the services of the Grantee to its
customers as provided by state law and City Charter.
(b) Grantee may from time to time propose changes in its general rates by filing
an application with the City Secretary for consideration of the City Council.
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Within a reasonable time consistent with law, the City Council shall afford
Grantee a fair hearing with reference to the application and shall either
approve or disapprove the proposed changes or make such order as may be
reasonable.
(c) In order to ascertain any and all facts, the City Council shall have the full
power and authority to inspect or cause to be inspected, the books of
Grantee, and to inventory and appraise, or cause to be inventoried and
appraised, the property of Grantee, and to compel the attendance of witnesses
and production of books and records.
(d) Grantee shall have the right, subject to City rules and regulations and
consistent with the applicable state and federal law, to require a reasonable
security deposit for the payment of services.
SECTION 10. COMPENSATION.
(a) For the reason that the City property to be used by Grantee in the operation
Of its utility system and facilities within the City are valuable public properties,
acquired and maintained by the City at great expense to the taxpayers; and
that Grantee's use of said property is a valuable property right which Grantee
would be required to invest substantial capital in right -of -way cost and
acquisition, Grantee agrees to pay and City agrees to accept, on or before
March 1, 1996, a sum of money which shall be equivalent to two percent (2 %)
Of the gross receipts received by Company from the sale of gas to its
residential and commercial customers within the City (expressly excluding,
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however, receipts derived from sales to industrial and governmental customers
in the City) for the preceding calendar quarter. Thereafter, Grantee agrees
to pay and City agrees to accept a sum of money which shall be equivalent to
four percent (4 %) of the sum of (a) gross receipts received by Grantee from
the sale of gas through the pipeline system of Grantee within City to
residential, commercial and industrial customers within City (expressly
excluding governmental users), (b) gross receipts received by Grantee from
the transportation of gas through the pipeline system of Grantee within the
City to commercial and industrial customers within the City (expressly
excluding governmental users), and (c) the total cost of gas transported by
Grantee for commercial and industrial customers within City for gas
transported through the pipeline system of Grantee within City (expressly
excluding governmental users) during the preceding calendar quarter, which
quarterly payments shall be for the rights and privileges herein granted to
Grantee, including expressly, without limitation, the right to use the City
property.
(b) Franchise fee payments shall be paid quarterly on or before March 1, 1996,
June 1, 1996, September 1, 1996, and December 1, 1996 for the most recently
ended calendar quarter, and on or before the same days of each succeeding
year during the life of this franchise. Grantee shall make such payments by
wire transfer, if requested by the City. Should any payment due date required
by this Ordinance fall on a weekend or declared bank holiday, payment shall
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be made to the City no later than the working day prior to any specifically
required due date contained within this Ordinance. The initial payment for
the rights and privileges herein provided shall be for the period January 1,
1996, through March 31, 1996, and each succeeding payment shall be for the
calendar quarter in which the payment is made.
(c) The compensation provided herein shall be in lieu of any and all other and
additional occupation taxes, easement, franchise takes or charges (whether
levied as a special, or other character of tax or charge), municipal license,
permit, and inspection fees, bonds, street taxes, and street or alley rentals or
charges, and all other and additional municipal taxes, charges, levies, fees, and
rentals of whatsoever kind and character which City may now impose or
hereafter levy and collect from Grantee or Grantee's agents, excepting only
the usual general or special ad valorem taxes which City is authorized to levy
and impose upon real and personal property. Should City not have the legal
power to agree that the payment of the foregoing sums of money shall be in
lieu of 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 Grantee's
obligations, if any, to pay any such taxes, licenses, charges, fees,rentals,
easement or franchise taxes or charges aforesaid.
(d) Grantee agrees that on the same date that payments are made, as provided
in this Section 10, it will file with the City Secretary a sworn report showing
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the gross receipts received by Grantee from the sale of gas to its residential,
commercial, and industrial customers and from the transportation of gas
within City during the calendar quarter preceding the date of payment. Such
report shall also include the total cost of gas transported by Grantee for
customers based on the information as disclosed by such customers to
Grantee during the calendar quarter preceding the date of payment or on the
index price, if applicable. City may, if it sees fit, have the books and records
of Grantee examined by a representative of City to ascertain the correctness
of the sworn reports agreed to be filed herein.
(e) Each customer of Grantee transporting gas within the City through the
pipeline system of Grantee within the City shall disclose to Grantee within
forty-five (45) days following the end of each calendar month the total cost
of gas transported by Grantee for such customer during such preceding
calendar month. City and Grantee acknowledge that normal billing practices
in the gas industry may cause delays in the disclosure of total cost of gas
information by customers. To the extent that such delays prevent the timely
disclosure of total cost of gas information to Grantee from customers
transporting gas, Grantee shall be permitted to delay payment to the City
related to such total cost of gas information until the next regularly scheduled
payment. If a customer refuses to disclose to Grantee the total cost of gas
transported by Grantee for such customer so that the fees provided for herein
cannot be accurately calculated and collected from such customer, Grantee
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shall utilize 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 Grantee during such month for a customer, and the
product thereof shall then be multiplied by the applicable percentage to
determine the amount due the City. Grantee shall use due diligence in
collecting from customers the fees required by this franchise. If a
transportation customer refuses to pay the fee related to the total cost of gas
transported and remains delinquent in payment of such fees for more than
thirty (30) days, Grantee shall be responsible for the unpaid fee related to the
total cost of gas transported thereafter.
SECTION 11. ASSIGNMENT.
This franchise shall not be assigned without the express written consent of the City.
The terms and conditions contained in this Ordinance shall be binding upon Grantee, its
successors, and assigns. Nothing herein shall be deemed a waiver, release, or relinquishment
of the City's right to regulate the rates and services of Grantee or either party's right to
contest or appeal any action or decision of the other party to the Texas Railroad
Commission or successor.
SECTION 12. GOVERNING LAW.
This franchise is subject to all applicable state laws and the provisions of the City
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Charter. This franchise shall in no way affect or impair the present or future rights,
obligations or remedies of the City or Grantee under the Gas Utility Regulatory Act , as
amended, or its successor.
SECTION 13. INDEMNIFICATION.
Grantee shall defend, indemnify and save whole and harmless the City, its officers,
agents, and employees against any and all claims, Iawsuits, judgments, costs, and expenses
for personal injury (including death), property damage, or other harm for which recovery
damages are sought by any person or persons that may be occasioned by, or arise out of
Grantee's breach of any of the terms or provisions of this Ordinance, or by any negligent
or strictly liable act or omission by Grantee, its officers, agents, employees, subcontractors,
affiliates and subsidiaries, in the construction, maintenance, operation, or repair of the gas
utility system, or by the conduct of Grantee's business in the City pursuant to this
Ordinance; except that the indemnity provided for in this section shall not apply to any
liability resulting from the sole negligence or fault of the City, its officers, agents, or
employees or separate contractors, and in the event of joint and concurrent negligence or
fault of both the Grantee and the City, responsibility and indemnity, if any, shall be
apportioned comparatively in accordance with the Iaws of the State of Texas without,
however, waiving any governmental immunity available to the City under Texas law, and
without waiving any of the defenses of the parties under Texas law. It is further understood
that it is not the intention of the Grantee and the City to create liability for the benefit of
third parties, but that this section shall be solely for the benefit of the Grantee and City and
shall not create or grant any rights, contractual or otherwise, to any other person or entity.
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SECTION 14. ANNEXATION.
This franchise shall extend to and include any and all territory that is within the City's
corporate limits. The franchise shall also extend to any territory which is annexed by the
City during the term of this franchise. In the event of disannexation, this franchise shall be
reduced to the territory that continues to be in the City. City shall promptly furnish the
Grantee with maps or other documents showing the affected area in the event of an
annexation or disannexation. Within thirty (30) days of such maps or other documents are
furnished, Grantee shall identify all customers located within such annexed or disannexed
territory and adjust its accounting system and records accordingly. Compensation under this
franchise shall include annexed territory within thirty (30) days from the date the City
furnishes the maps or other documents to the Grantee.
SECTION 15. TERMINATION
In addition to all rights and powers of the City by virtue of this franchise or
otherwise, the City may terminate this franchise if, after notice and hearing, Grantee is
found to be in violation of any material, term, condition, or provision of this franchise and
fails or refuses to effect compliance within forty -five (45) days following written demand for
compliance from the City following such hearing.
SECTION 16. REPEALING CLAUSE.
Upon the effective date of this Ordinance, all other gas franchise ordinances of the
City of Coppell, Texas, applicable to Grantee shall be and the same are hereby repealed
and all other ordinances not in conflict with the provisions of this Ordinance shall remain
in full force and effect.
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SECTION 17. SEVERABILITY CLAUSE.
That should any word, phrase, paragraph, section or portion of this ordinance be held
to be void or unconstitutional, the same shall not affect the validity of the remaining
Portions of said ordinance, which shall remain in full force and effect.
SECTION 18. EFFECTIVE DATE.
Subject to Grantee's acceptance, this Ordinance shall take effect thirty (30) days
from and after its passage as the law and charter in such cases provide.
SECTION 19. ACCEPTANCE.
Grantee shall file its acceptance of this Ordinance within thirty (30) days of its
Passage by filing with the office of the City Secretary a written acceptance signed and
acknowledged by a duly authorized officer substantially in the following form:
To the Honorable Mayor and City Council of the City of Coppell, Texas:
Grantee, Lone Star Gas Company, a division of ENSERCH Corporation,
acting by and through the undersigned authorized officer, hereby accepts
Ordinance No. granting a franchise to Lone Star Gas
Company, a division of ENSERCH Corporation.
Vice President Lone Star Gas
Company, a division of Enserch Corporation
EXECUTED this the day of 19
Upon filing of the acceptance, this Agreement shall become effective. In the event that such
acceptance is not filed within thirty (30) days after the passage of this Ordinance, this
Ordinance shall terminate and become null and void.
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DULY PASSED by the City Council of the City of Coppell, Texas, this the
day of 1996.
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APPROVED:
APPROVED AS TO FORM:
P R G. SM ,CITY ATTORNEY
(PGS/ct 1/11/96)
TOM MORTON, MAYOR
ATTEST:
LINDA GRAU, CITY SECRETARY
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To the Honorable Mayor and City Council of the City of Coppell, Texas
Grantee, Lone Star Gas Company, a division of ENSERCH Corporation, acting
by and through the undersigned authorized officer, hereby accepts Ordinance No.
96743 granting a franchise to Lone Star Gas Company, a division of ENSERCH
Corporation.
Vice sident Lone S Gas
Co p y, a division oJr ENSERCH Corporation
EXECUTED this the /
2—Hday of 19��
Recieved by the City of Coppell, Texas, this the
day of 1996.
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L GRAU, C SECRETARY
LEGAL MEMORANDUM
(214) 573 -3217 \ FAX (214) 747 -1187
Date: February 28, 1996
To: Kevin Page
From: Charles R. Yarbrough, II
Re: Acceptance Agreement; City of Coppell, Texas
Enclosed are an original and two copies of the acceptance agreement for the franchise ordinance for the
City of Coppell, Texas. Also enclosed for return to the City are two originals of the franchise
ordinance.
PIease have the original and both copies of the acceptance agreement signed and sealed by the City
Secretary of Coppell and return original and one copy to my office for handling.
Also, please be sure and forward the Publisher's Affidavit when available.
gah
enclosure
cc: Allyn Giles
Nancy Olszewslri