ST9302-CS 960307AN ORDINANCE OF THE CITY OF COPPELL, TEXAS
o mNANc NO. s/3
AN ORDINANCE OF THE CITY OF COPPELL, TEXAS, GRANTING TO LONE
STAR GAS COMPANY, A DMSION 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 ASSIGNMEN'P,
PROVIDING FOR TERMINATION; PROVIDING FOR ACCEPTANCE OF THE
FRANCHISE; PROVIDING A REpEJkLING CLAUSE; PROVIDING A
SEVERABILITY CLAUSE; AND PROVIDING AN EFFECIIYE DATE.
WHEREAS, Lone Star Gas Company, a division of Enserch Corporation, currently
has a franchi-~e in the City of CopDe]I, Texas, which authorizes said company to supply
customers in the City d Coppell with natural gas; and
WHEREAS, the ah-rent Fr~nchi---, Agreement with Lone Star Gas Company expired
on September 10, 1995; and
WHEREAS, the Lone Star Gas Company and the City d Coppell, Texas mutually
agreed to extend the Franchise Agreement Dendln~ negotiation of a new Franchise
Agreement; and
WHEREAS, negotiations between Lone Star Gas Company and the City of Coppe~
Texas have been completed and the parties desire that a new Franchi~ Agreement to be
effective upon the expiration of the awrent 0rdlnan~e.
NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNaL OF THE crn,
OF COPPELL, TEXAS:
SECTION 1.
(a)
PURPOSE.
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
I AGGOTF66
have, acquire, construct, reconstruct, extend, mafntai~ 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 (hcreinafter called "Cit3?'),
a gas utility system, including, but not limited to a gas tr~n.~mi~ion and
distn'bution 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 Cor~maanlcations Policy Act Of 1984
(47 U.S.C.A- § S21 et seq, as Amended) as recognized by the Federal
Communications Cornmi-~ion (the FCC) without first obtaining a separate
franchise from the City. This franchise is granted solely to the C, rantee.
Grantee is not authorized to Hcense 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 Hcensing or leasing of any right to occupy and use any
City property. ~
SEC'HON 2. CONSTRUeliON 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:
2
(a)
General
All construction, reconstruction, exp:~n-~ion, repairs, excavation, or other work
performed by Grantee, and nil facilities of the Grantee, which arc inst_a_lled
within City property, shall be in accordance with all generally applicable City
Codes and Ordinances, including City st _nndard construction det_~ils 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, d~rnaSed or
destroyed landscaping material, caused by the construction, maintenance,
expansion, reconstruction, operation or use of City property by Grantee.
Permit sad Approval
In accordance with generally applicable permitting City ordln~nces, Gram~
shall submit to an official of the City, as designated from time to time
proposed construction plans of all facilities, includin~ sketches of piping
hyouts, to be installed, reconstructed, repaired, or expanded in, on, above,
across, or under City property and any rehted street closure plan~ prior to the
issuance of any applicable permit and the commencement of such construction
or other work, City may require the submittal of a tr~_fflc 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
3 ac~oi~t~
(c)
(d)
require reasonable modifications in order to protect existing or antidpated
public improvements or other existing utilities. Grantee shall not be required
to ob~in 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 Grantec's
contractors shall not be required to pay any permit fees or provide any
pe~orm:mce bonds in connection with Grantees work on City property.
Traffic Control
The Grantee shall conduct all tra~c control in accordance with the latest
version of the Texas lVt~m_,~l on Uniform Tra~c Control Devices, as
amended.
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 unreasoBable 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 ~me and to require the Grantee
to pay the reasonable costs of such work.
4 /u~OTF~6
(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 l!n~intziin 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 customers 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 comw, ction with
Grantee's customer meter to the point of connection with the customer's
house piping. If any one residen_~_~! customer of gas, at a minimum, uses gas
for Hrt~pplemented space heating and water heating, Grantee shsll be
required at its own exl~nse to extend mains on any street up to one hundred
feet (100'). Grantee shall not be required to extend trnrt~mi-~on maim on
any City property or to make a tap on any trnr~ni-~on main within City
nn|eS5 Grantee agrees to such extension by a written agreement between
Grantee and a customer.
SEC'HON 3. OCCUPANCY CONDITIONS.
All facilities constructed, relocated, or maintained by Grantee within the City
property shall be located so as to not Hnreasonably 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 adjo'ming property. Grantee shall not place any of its facilities
where the ~me will unreasonably interfere with any existing gas, electric, or telephone
fixture, water hydrant, or main, drnin~.~.~e facility, or s.~nltary sewer, or ~_mreasonably interfere
with travel on or public use of the streets, alleys, or other City property.
SEC'FION 4. RELOCATION.
When the Grantee is required by City to remove or relocate its maim, latet'ais, and
other facilities to acCOmmOdate corntraction of streets, alleys, drainage Im.nrovements, water
line and/or sewer lines by City, and Grantee is eligible under fedend, state, county programs
for reimbursement of costs and expenses incurred by Grantee as a restfit of such removal
or relocation, and such reimbursement is required to be handled through City, Caantee
and expenses shall be included in any application by City for reimbursement, if Grantee
submits its cost and expense doo,mentation to City prior to the filing of the application-
City shall provide reasonable notice to Grantee of the deadline for Grantee to submit
doc,~mentation 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
6 AGGO?F66
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 S. 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 necessaxy 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, hifhway, alley, public
way or street, or the grade thereof. When City damages Grautee's facilities
while doin~ work on City facilities, Grantee shall repair any such cl~m~e at
City's expense. ijkewi~ when Grantee damages City's facilities while doin~
work on Grantees facilities, City shall repair any such damaBe at Grantee's
(b)
(a)
expense.
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 ~ranted to
Grantee.
SECTION 6. REPORTS AND RECORD& ,
Grantee shall keep compleus and accurate books of accounts and records of
its business and operations from which its gross receipts may be determined.
7 tm6o~66
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 fights under this ordinance. Upon
request, Grantee shall filrnish the City with copies of Enserch CorpOra~on's
annHn| andit reports of its financial statements by an independent certified
pubtic accountant and 10K and 10Q Reports to the Senxri~es & FAc-hanSe
Commi-~qion and shall make available for impeaton by the City all reports
filed with the ]!l~ilroad Comml.e,_~ion of Texas or its successor. Upon requ~'t,
Grantee shall make such other ~ studies and furnish such other repom
as the City may reasonably require for the administration of this OrdiBll!lC~
C0) The City shnll have the right, at reasonable times, to inspect th~ plant,
equipment and other property of the Grantee and its affilistes to ex. amlne,
audit, and obtain copies Of the papel~ book$~ accottllt~ decrements, and other
business records of the Grantee consistent with stat~ 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 _~me, and as on ~e with the City.
SECTION 8, FRANCHISE ADMINISTRATION,
(a) The City Manager, or hi.~ designee, is the principal City officer responsible for
the admini.~tration of thi.~ franchi~ and shall oversee and review the
operations of Grantee under thi-~ franchise.
Co) 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 frallchise, but the City Council reserves unto itseft the exclusive power to
fix and regulate the general charges and ram of Grantee, to the full extent
that this authority is provided in the-Charter, this franchi-~., and state law.
(c) It shall be the right and duty of the City Manager, or his designee, to keep.
fully infollned as to all matters in connection with or affectillg 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.
SEC'~ON 9. SERVICE RATES.
(a) City Council hereby expressly reserves the right, power, and authority to fully
Co)
regulate and fix the rates and charges for the services of the Grantee to its
customers as provided by state law and City Charter..
Grantee may fi'om time to time propose changes in its general rates by filing
an application with the City Secretary for consideration of the City Council
9 aGG0/v~
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 approve the proposed changes or make such order as may be
reasonable.
(c) In order to ascert_~in ally 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 ,~itnes,ses
and production of books and records.
(d) Grantee shall have the right, subject to City rules and re~,ulations and
consistent with the applicable state and federal hw, to require a reasonable
seanjty deposit for the payment d services.
SECTION 10. COMPENSATION.
(a) For the reason that the City property to be used by Gramee in the operation
of its utility system and facih'ties within the City are valuable public properties,
acquired and maintained by the City at ~reat expense to the taxpayers; and
that Grantee's use d said property is a valuable property right which Grantee
would be required to invest subst__~ntial capital in right-of-way cost and
acquisition, Grantee agrees to pay and City agrees to accept, on or before
March 1, 1996, a ~m of money which shall be equivalent to two percent (2%)
of the gro.~ receipts received by Company from the sale of gas to its
residential and commercial customers within the City (expressly excluding,
10 a~0.~
(b)
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 snm of money which shall be equivalent to
four percent (4%) of the s~m of (a) gross receipts received by Grantee from
the sale d gas through the pipeline system of Grantee within City to
residential, commercial and industrial customers within City (expr~
excluding governmental users), Co) gross receipts received by Grantee from
the trn~t~portation d gas through the pipeline system d Grantee Within the
City to commercial ~nd industrial customers within the City (expres~
excluding governmental users), and (c) the total cost d gas ~rted by
Grantee for commercial and industrial customers within City for gs~
traBsl)orted through the pipelille system of Ctl-ante~ w~thin City (eapre~
excludin~ Eovernments! users) durin~ the pret~ing calendar quarter, whida
quarterly payments shall be for the riF, hts and privileSes heroin granted to
Grantee, including expressly, without limitation, the right to use the City
property.
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 d each succe~dlng
year during the life of ,_hi.~ franchise. Grantee shall make such payments by
wire transfer, if requested by the City. Should any payment due date required
by thi.~ Ordinance fall on a weekend or declared b-~nk holiday, payment shall
11 a=e,t~
be made to the City no later than the working day prior to any specifically
required due date contained within thi.~ Ordinance. The initial payment for
the fights 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 taxes or charges (whether
levied as a special, or other character of tax or charge), m-nlcipal. license,
permit, and inspection fees, bonds, street taxes, and street or alley ren,_nlt or
charges. and all other and additional m, nidpal taxes. charges. levies. fees, and
rentals of whatsoever End and character which City may now impose or
hereafter levy and collect from Grantee or Grantee's agents. excepting only
the us~al general or special ad valorem taxes which City is authorized to levy
and inspose upon real and personal property. Should City not have the legal
power to agree that the payment of the foregoing sums of money shnll be in
lieu of taxes, licenses, fees, street or alley rent_al-g 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 necessaxy to satisfy Grantees
obligations, if any, m pay any such taxes, licenses, charges, fees, rentals,
easement or franchise taxes or charges aforesaid.
(d) Grantee agrees that on the ~me date that payments are made, as provided
in thi.~ Section 10, it will file with the City Secretary a sworn report showing
the gross receipts received by Grantee from the sale d gas to its residential,
commercial, and industrial cuswmers and from the trnn-~portation of gas
within City during the calendar quarter preceding the date of payment. Such
report shall also include the total cost of gas trnn-~orted 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
d Grantee e~tamined by a representative of City to ascertain the co~ectness
of the sworn reports agreed to be filed herein.
Each customer of Grantee Waml~ gas within the City through the
pipeline system of Grantee within the City shal] di,qc]ose to C. wrantoe withill
forty-five (45) days foHowln~ the end d each calendar month the total oost
d gas transported by Grantee for such customer during such preco61ng
calendar month. City and Grantee acknowledge that normal billing praetiees
in the gas industry may cause dehys in the disclosure d total cost d gas
information by customers. To the extent that such dehys prevent the timely
disclosure d total cost d gas information to Grantee from customers
u'-am~ gas, Grantee shah be permitted to dehy payment to the City
related to such total cost of gas information until the next regularly scheduled
payment. ff a customer refttses 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 coHeaed from such customer, Grantee
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
tided, "Delivered Spot-Gas Prices," for gas delivered at Houston Ship
Chnnnel/Bea~_:mont, Texas, or a mutually agreeable successor publication and
index. Such index price for any given month shall be multiplied by the actual
volnmc tran-~ported 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 ,m, franchise. If a
tr~rt~}ortation customer rcfnses to pay the fee related to the total cost of gas
~ncd and remains delinquent in payment of such fees for more than
thirty (30) days, Grantee shall be responsible for the u.mmid fee related to the
total cost of gas transported thereafter.
SECTION 1L 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 relinquishmcnt
of the City's right to regulate the rates and services of (3rantee or either pany's right to
contest or appeal any action or decision of the other party to the Texas Railro~
Cornmi-~ion or successor. ~
SECTION 12. GOVERNING lAW.
This franchise is subject to all applicable state laws and the provisions of the City
14 a~0Ht~
Charter. This franchise shall in no way affect or impair the present or future fights,
obligations or remedies of the City or Grantee under the Gas Utility Regulatory Act, as
amended, or its successor.
SECTION 13. INDEMNIHCATION.
Grantee shall defend, indemnify and save whole and harmless the City, its officers,
agents, and employees against any and all claims, lawatits, judgments, costs, and expenses
for personal injury (including death), property damage, or other harm for which recovery
d,rr,:,ges are sought by any person or persons that may be occa~oned by, or ~ out of
Grantce's breach of any of the terms or provisions of thin Ordinance, or by lilly Ilegli~Dl
or strictly liable act or ornl-t~ion by Grantee, its officers, agents, employees, subcontractori,
affiliate~ and subsidiaries, in the construction, rrminten~nCe~ operB,~On, Or repair of the gas
utility system, or by the conduct of Grantees business in the City promram to this
Ordinance; except that the indemnity provided for in thin seaion 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 neE!i~ence or
fault of both the Grantee and the City, respons~ility and indemnity, ff any, shall be
apportioned comparatively in accordance with the hws of the State of Tem~ without,
however, waivin~ any governmental immenlty available to the City under Texas law, and
without waiving any of the defenses of the parties under Texas hw. 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.
15 a=0,~
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 thi,~ franchise. In the event of disannexation, t_hi~ franchise shall be
reduced to the territory that continues to be in the City. City shall promptly furnish the
Grantee with maps or other doo~ments showing the affected area in the event d an
nnnexation or dL_~-qnnexation- Within thirty (30) days d such maps or other documents are
furnished, Grantee shall identify all customers located within such almexed or '_dis!innexed
territory and adjust its accounting system and records accordingly. Com!~,nsation under this
franchise shall indude annexed territory within thirty (30) dayS from the date the City
furnishes the map or other doo~ments to the Grantee.
SECTION 1S, TERMINATION
In addition to all rights and powers d the City by virtue d this franchise or
otherwise, the City may terminate this franchise i~ after notice and hearin~ Grantee is
found to be in viohtion of any material, term, condition, or provision d this franchise and
fails or refuses to effect compliance within forty-five (45) days following written demand for
compliance from the City following such hearin~
SECTION 16. REPF~LE~IG CLAUSE
Upon the effective date of thi.~ Ordinance, all other gas franchise Ordins~nceS Of the
City of Coppell, Texas, applicable to Grantee shall be and the same are hereby repealed
and all other orflin:~nces not in conflict with the provisions of thi.~ Ordinnnce sha]l rem~iin
in full force and effect.
16 a~0z~ss
SECTION 17. SEVERABILITY CLAUSE.
That should any word, phrase, paragraph, section or portion of thi.~ Ordinance be held
to be void or unconstitutional, the same shall not affect the validity of the rem,~ining
portions of said Ordinance, which shall remnln in full force and effect.
SECTION 18. EFFECTIVE DA'I~
Subject to Grantees acceptance, thi.~ Ordinance shall take effect thirty (30) days
from and after its passage as the hw and charter in such cases provide.
SECTION 19. ACCEPTANCE. -
Grantee shall file its acceptance of thi.~ Ordinance within thirty (30) days d its
passage by filing with the office Of the City Secretary a written acceptauce signed and
acknowledged by a chly authorized officer substantially in the following form:
To the Honorable Mayor and City Council of the City of Coppell, Team:
Grantee, Lone Star Cras Compauy, a division of ENSERCH Corporation,
Oraln,mce No. granting a franchise to Lone Star Gas
Company, a division of ENSERCH Corporation.
Vice President Lone Star Gas
Company, a dividon dv~r, ereh C, etpomgon
~ thi.~ the
day of ,19 ...
Upon filing of the acceptance, thi~ Agreement shall become effective. In the event that such
acceptance is not fled within thirty (30) days after the passage-of thi.~ Ordizlance, this
Ordinance shall terminate and become null and void.
17 ssortt~
day of
DULY PASSED by the City Council of the City of Coppell, Texas, thi,~ the
,1996.
APPROVED:
~'~~M~ORTON, MA.Y~O'~~'
APPROVED AS TO FORM:
(P~s/~t i/xx/96)
18 amo.~
To the Honorable Mayor and City Council of the City of Coppal, Ten~
Grantee, Lone Star Gas Company, a division of ENSERCH Corporation, acting
by and through the und~algned authorized officer, hereby accepts Ordinance No.
96743 granting a franchise to Lone Star C. vas Company, a division of ENSERCH
Corporation.
E H 'n
Recleved by ~j;~,ty
day of ~. ·
of Coppell, Texas· this the
· 1996.
U, CITY SECRETARY