HomeMy WebLinkAbout2020-O-33 - Atmos Franchise Ordinance ORDINANCE NO.2020-0-33
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 STEPHENVILLE, ERATH COUNTY,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;AND REPEALING ALL PREVIOUS GAS FRANCHISE ORDINANCES.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF STEPHENVILLE,TEXAS:
SECTION 1. GRANT OF AUTHORITY
The City of Stephenville,Texas, hereinafter called "City," hereby grants to Atmos Energy Corporation, Mid-
Tex Division, hereinafter called "Atmos Energy," 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, said consent being granted for a term ending December 31, 2045.
SECTION 2.CONSTRUCTION,MAINTENANCE,OPERATION&RELOCATION OF ATMOS ENERGY FACILITIES
A. Atmos Energy shall lay,maintain,construct,operate,and replace its pipes,mains,laterals,and other
equipment to minimize interference with traffic, place or cause to be placed appropriate barriers to
mark excavations or obstructions, and restore to approximate original condition all Public Rights-
of-Way that it may disturb. In determining the location of the facilities of the City and other users
of Public Right-of-Way within City, City shall minimize interference with then existing facilities of
Atmos Energy and shall require other users of Public Rights-of-Way to minimize interference with
existing facilities of Atmos Energy. In the event of a conflict between the location of the proposed
facilities of Atmos Energy and the location of the existing facilities of City or other users of Public
Rights-of-Way within Public Rights-of-Way that cannot otherwise be resolved, City or an authorized
agent of City shall resolve the conflict and determine the location of the respective facilities within
the Public Rights-of-Way.
Atmos Energy or contractors working on behalf of Atmos Energy shall not be required to pay for
street cutting, street excavation or other special permits related to excavations in Public Rights-of-
Way in connection with Atmos Energy's operations in Public Rights-of-Way.City shall provide Atmos
Energy with its annual capital improvements plan as well as any updates or changes as soon as the
plan, update, or change becomes available. City shall notify Atmos Energy as soon as reasonably
possible of any projects that will affect Atmos Energy's facilities located in the Public Rights-of-Way.
When required by City to remove or relocate its mains, laterals, and/or other facilities lying within
Public Rights-of-Way, Atmos Energy shall do so as soon as practically possible with respect to the
scope of the project. In no event shall Atmos Energy be required to remove or relocate its facilities
in less than thirty (30) days from the time notice is given to Atmos Energy by City.
B. If City, in constructing its sewers, drainage, water lines, streets, or utilities, should request that
Atmos Energy remove or relocate its mains, laterals, and other facilities lying within Public Rights-
of-Way, Atmos Energy shall do so at its own expense for facilities that are in conflict, unless such
work is for the primary purpose of beautification or to accommodate a private developer. Facilities
are deemed to be in conflict to the extent that the proposed City facilities are determined by Atmos
Energy to be inconsistent with gas distribution industry standard safe operating practices for
existing facilities. Atmos Energy shall not be required to relocate facilities to a depth of greater than
four(4)feet unless prior agreement is obtained from Atmos Energy.
When Atmos Energy 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 Atmos Energy as a result of such removal or relocation,and such
reimbursement is required to be handled through City, Atmos Energy costs and expenses shall be
included in any application by City for reimbursement if Atmos Energy submits its cost and expense
documentation to City prior to the filing of the application. City shall provide reasonable written
notice to Atmos Energy of the deadline for Atmos Energy to submit documentation of the costs and
expenses of such relocation to City. In the event that the City does not provide sufficient written
notice to Atmos Energy as set forth in this paragraph, the City shall be responsible for fifty percent
(50%) of the cost of the removal or relocation of Atmos Energy's facilities.
If Atmos Energy is required by City to remove or relocate its mains, laterals, or other facilities lying
within Public Rights-of-Way for any reason other than the construction or reconstruction of sewers,
drainage, water lines, streets or utilities by City, Atmos Energy shall be entitled to reimbursement
from City or others of the cost and expense of such removal or relocation.
C. When Atmos Energy is required to remove or relocate its mains, laterals or other 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. City shall not oppose recovery of relocation costs when Company is required by
City to perform relocation. City shall not require that Company document request for
reimbursement as a pre-condition to recovery of such relocation costs.
If City abandons any Public Rights-of-Way in which Atmos Energy has facilities, such abandonment
shall be conditioned on Atmos Energy's right to maintain its use of the former Public Right-of-Way
and on the obligation of the party to whom the Public Right-of-Way is abandoned to reimburse
Atmos Energy for all removal or relocation expenses if Atmos Energy agrees to the removal or
relocation of its facilities following abandonment of the Public Right-of-Way. If the party to whom
the Public Right-of-Way is abandoned requests Atmos Energy to remove or relocate its facilities and
Atmos Energy agrees to such removal or relocation,such removal or relocation shall be done within
a reasonable time at the expense of the party requesting the removal or relocation. If relocation
cannot practically be made to another Public Right-of-Way, the expense of any right-of-way
acquisition shall be considered a relocation expense to be reimbursed by the party requesting the
relocation.
SECTION 3. INDEMNITY&INSURANCE
In the event of injury to any person or damage to any property by reason of Atmos Energy's construction,
operation, maintenance, or replacement of Atmos Energy's pipeline system within Public Rights-of-Way,
Atmos Energy shall indemnify and keep harmless City from any and all liability in connection therewith,
except to the extent such injury or damage is attributable to the fault of the City, including, without
limitation,the City's negligent or intentional acts or omissions. Atmos Energy's insurance of its obligations
and risks undertaken pursuant to this franchise may be in the form of self-insurance to the extent
permitted by applicable law, under an Atmos Energy plan of self-insurance maintained in accordance with
sound accounting and risk-management practices.
SECTION 4. 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 5. PAYMENTS TO CITY
A. Atmos Energy, its successors and assigns, agrees to pay and City agrees to accept, on or before the
1st day of February, 2021, and on or before the same day of each succeeding year during the term
of this franchise the last payment being made on the 1st day of February, 2045, a sum of money
which shall be equivalent to five percent (5%) of the Gross Revenues, as defined in 5.B below,
received by Atmos Energy during the preceding calendar year.
r--. B. "Gross Revenues" shall mean:
1. all revenues received by Atmos Energy 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 Atmos Energy from the transportation of gas through the System
of Atmos Energy 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 Atmos Energy for Transport Customers through the System of
Atmos Energy 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 Atmos Energy's monthly Weighted Average 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 the following "miscellaneous charges": charges to
connect,disconnect,or reconnect gas and charges to handle returned checks from consumers
within the City.
5. "Gross Revenues" shall not include:
a. revenues billed but not ultimately collected or received by Atmos Energy;
b. contributions in aid of construction;
c. the revenue of any affiliate or subsidiary of Atmos Energy;
d. sales tax and franchise fees paid to the City;
e. interest or investment income earned by Atmos Energy; and
f. monies received from the lease or sale of real or personal property, provided,
however, that this exclusion does not apply to the lease of facilities within the
City's right of way.
C. The initial payment for the rights and privileges herein provided shall be for the privilege period
January 1 through December 31, 2021, and each succeeding payment shall be for the privilege
period of the calendar year in which the payment is made.
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 Atmos Energy or Atmos Energy'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. 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 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 Atmos Energy's obligations, if any,to pay any such taxes,
licenses, charges, fees, rentals, easement or franchise taxes or charges aforesaid.
D. Effect of Other Municipal Franchise Ordinance Fees Accepted and Paid by Atmos Energy
If Atmos Energy should at any time after the effective date of this Ordinance agree to a new
municipal franchise ordinance, or renew an existing municipal franchise ordinance, with another
municipality in Atmos Energy's Mid-Tex Division, which municipal franchise ordinance determines
the franchise fee owed to that municipality for the use of its public rights-of-way in a manner that,
if applied to the City, would result in a franchise fee greater than the amount otherwise due City
under this Ordinance, then the franchise fee to be paid by Atmos Energy to City pursuant to this
Ordinance may, at the election of the City, be increased so that the amount due and to be paid is
equal to the amount that would be due and payable to City were the franchise fee provisions of that
other franchise ordinance applied to City. The City acknowledges that the exercise of this right is
conditioned upon the City's acceptance of all terms and conditions of the other municipal franchise
in toto. The City may request waiver of certain terms and Company may grant,in its sole reasonable
discretion, such waiver.
E. Atmos Energy Franchise Fee Recovery Tariff
1. Atmos Energy 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 of Atmos Energy's rates;
(ii)if the City intervenes in any regulatory proceeding before a federal or state agency in which
the recovery of Atmos Energy's franchise fees is an issue, the City will take an affirmative
position supporting 100% recovery of such franchise fees by Atmos Energy 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 Atmos Energy.
3. City agrees that 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 Atmos Energy.
F. Lease of Facilities Within City's Rights-of-Way. Atmos Energy shall have the right to lease, license
or otherwise grant to a party other than Atmos Energy the use of its facilities within the City's
„.... public rights-of-way provided: (i) Atmos Energy first notifies the City of the name of the lessee,
licensee or user; the type of service(s) intended to be provided through the facilities; and the
name and telephone number of a contact person associated with such lessee, licensee or user
and (ii) Atmos Energy makes the franchise fee payment due on the revenues from such lease
pursuant to Section 5 of this Ordinance. This authority to Lease Facilities within City's Rights-of-
Way shall not affect any such lessee, licensee or user's obligation, if any, to pay franchise fees.
SECTION 6.ACCEPTANCE OF FRANCHISE
In order to accept this franchise,Atmos Energy must file with the City Secretary its written acceptance of
this franchise ordinance within sixty(60) days after its final passage and approval by City. If such written
acceptance of this franchise ordinance is not filed by Atmos Energy, the franchise ordinance shall be
rendered null and void.
When this franchise ordinance becomes effective, all previous ordinances of City granting franchises for
gas delivery purposes that were held by Atmos Energy shall be automatically canceled and annulled, and
shall be of no further force and effect.
SECTION 7. 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 8. EFFECTIVE DATE
If Atmos Energy accepts this ordinance, it becomes effective as of December 8, 2020.
dill I V IE"\"—
,.,`;`;k OF S j'F, Qug Svien, : .r
ATTEST: ��• • - • �1G
1:,* '..'—PC I r..-4-... R,)
, 5_
s .,
Staci L. , City Secretary cO ..•�
RPO R P,��,,',.
""'','''111111111011``'
Reviewed y e Barnes
City Manager
c.- 2-2_...) 'j----.,
— Approved as to form and legality
Randy Thomas, City Attorney