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HomeMy WebLinkAboutORD 88-64 AGMIDA RT ORDINANCE NO. AN ORDINANCE GRANTING ENTEX, A DIVISION OF ARKLA, INC. , ITS SUCCESSORS AND ASSIGNS, THE RIGHTS , PRIVILEGE AND FRANCHISE FOR A PERIOD OF TWENTY (20) YEARS TO CONSTRUCT, LAY, MAINTAIN, OPERATE, EXTEND, REMOVE, REPLACE AND REPAIR A SYSTEM OF PIPELINES, GAS MAINS, LATERALS AND ATTACHMENTS AND ALL DESIRABLE INSTRUMENTALITIES IN, UNDER, OVER, ACROSS AND ALONG ANY AND ALL STREETS, AVENUES , PARKWAYS, SQUARES, ALLEYS AND ALL OTHER PUBLIC PLACES IN THE CITY OF BEAUMONT, JEFFERSON COUNTY, TEXAS FOR THE PURPOSE OF TRANS- PORTING, DISTRIBUTING, SUPPLYING AND SELLING GAS (NATURAL AND/OR ARTIFICIAL AND/OR MIXED) FOR HEATING, LIGHTING, POWER, AND FOR ALL OTHER PURPOSES FOR WHICH GAS MAY BE USED, TO THE MUNICI- PALITY OF SAID CITY OF BEAUMONT, TEXAS AND ITS INHABITANTS AND OTHERS; PROVIDING CONDITIONS CONTROLLING THE USE OF PUBLIC THOROUGHFARES AND EXTENSIONS THEREIN; ESTABLISHING STANDARDS OF SERVICE; PROVIDING FOR PAYMENT OF THREE PERCENT (3%) OF THE GROSS RECEIPTS FROM THE SALE AND TRANSPORTATION OF GAS AND FOR SERVICES RENDERED TO CUSTOMERS WITHIN THE CITY OF BEAUMONT; PROVIDING FOR ACCEPTANCE; PROVIDING A SEVERABILITY CLAUSE; MAKING MISCELLANEOUS PROVISIONS; AND REPEALING ALL ORDINANCES IN CONFLICT HEREWITH. BE IT ORDAINED BY THE CITY OF BEAUMONT: SECTION 1 . The City of Beaumont, Jefferson County, Texas (hereinafter referred to as "Grantor") does hereby grant unto Entex, a Division of Arkla, Inc. , its successors and assigns (hereinafter referred to as "Grantee") the right, privilege and franchise to construct, lay, maintain, oper- ate, use, extend, remove, replace and repair in, under, over, across and along any and all of the present and future streets, avenues, parkways, squares, alleys, thoroughfares, roads, highways, sidewalks, viaducts, bridges, streams, public grounds , public properties and other public places in the City of Beaumont, and in all tracts, territories and areas hereafter annexed to or acquired by and placed within the corporate boundaries of said municipality, a system of pipes , pipelines, gas mains , laterals, conduits, feeders , regulators, meters, fixtures, connections, attachments and other desirable instrumentalities and appurtenances neces- sary or proper for the purpose of transporting, distribut- ing, supplying and selling gas (natural and/or artificial and/or mixed) for heating, lighting, power and for any other purpose for which gas may now or hereafter be used in and to said municipality and its inhabitants or any other person or persons within or without the corporate boundaries of said municipality. SECTION 2 . Except as provided herein, Grantee expressly agrees that it shall not undertake major replacements or extensions of pipe, mains or other facilities within the boundaries of city parks currently owned or later estab- lished by Grantor without the prior written consent of the City of Beaumont. Grantee, however, shall not be required to remove or relocate its existing facilities in city parks established as of the date of this ordinance nor shall Grantee be required to remove or relocate facilities from land declared to be a city park subsequent to the date of this ordinance. Provided further, that Grantee shall not be required to obtain such prior written consent to perform routine maintenance or repairs of its facilities within city parks or when failure to repair, replace or extend such facilities would, in the good faith opinion of Grantee, pose a danger to public health or safety. SECTION 3. This ordinance shall extend to and include any and all territory which is annexed by Grantor during the term of this ordinance. Within forty-five (45) days from the receipt of notice from Grantor of any such annexation, Grantee shall assure that any and all customers located within such annexed territory are included and shown on its accounting system as being within the City of Beaumont. After such forty- five (45) day period, all gross receipts received from customers located within such annexed territory shall be subject to the payment provisions specified in Section 7 of this ordinance. SECTION 4 . Grantee' s property shall be so constructed and maintained as not to interfere unreasonably with traffic - 2 - i over the public thoroughfares of said municipality and the same shall be laid in accordance with the lines, grades, and conditions established by Grantor. When practical to do so or when otherwise required by City ordinance, Grantee shall notify the City Engineer of the City of Beaumont in advance of construction, maintenance or repair of facilities in the public thoroughfares of said municipality. SECTION 5 . Grantee shall not be required to run or extend any pipe a distance exceeding one hundred (100) feet, not to exceed a diameter of two (2) inches, in order to bring gas service to the property line of each additional customer. SECTION 6 . The service furnished hereunder to said municipality and its inhabitants shall be first-class in all respects considering all circumstances and shall be subject to such reasonable rules and regulations as Grantee may make from time to time consistent with the Quality of Service regulations established from time to time by the Railroad Commission of Texas. Grantee may require reasonable securi- ty for the payment of its bills. SECTION 7 . In consideration of the rights and privileges herein granted, after the effective date of this ordinance, Grantee agrees to pay to Grantor quarterly during the continuance of this ordinance a sum of money equal to three percent (3%) of the gross receipts received by Grantee from customers within the corporate limits of Grantor. Payments hereunder shall be calculated on the basis of gross receipts from the sale or transportation of gas and for services rendered to customers within the corporate limits of Gran- tor, under Grantee' s Schedules of Rates for such sales or transportation or services, during the calendar quarter next preceding that on account of which the payment is made and due and shall be payable on or before August 31 , November 30 , February 28 and April 30 of the calendar quarter for which payment is made , beginning with the first - 3 - such date next following the effective date of this ordi- nance and every August 31 , November 30 , February 28 and April 30 thereafter. Provided further, however, that the first payment hereunder shall be an amount equal to three percent (3%) of Grantee' s gross receipts, as herein defined, for all calendar quarters following December 31 , 1987 and preceding the calendar quarter in which such first payment is made. All payments to Grantor shall be accompanied by a certified statement of Grantee in a form prescribed by Grantor. Upon receipt of such payments, the City Finance Officer shall deliver to the Grantee a receipt for such amount. Should Grantee fail to tender payment to Grantor within ten (10) days following the date such payment is due, Grantee shall pay to Grantor, as a late payment penalty, an additional amount equal to two percent (2%) of the amount otherwise payable to Grantor on such due date. Upon Grantor' s request, Grantee shall present to it any and all records, accounts and books for inspection relative to the gross receipts of Grantee within the corporate limits of Grantor. The consideration hereinabove set forth shall be paid and received in lieu of any license, charge, fee, street or alley rental, or other character of charge for the use and occupancy for the streets , alleys and public places within Grantor, and in lieu of any pipe tax or inspection fee or tax, but shall not in anywise increase or diminish Grantee' s obligation to pay Grantor ad valorem taxes or anywise interfere with collection thereof. Any special taxes, rentals or other charges accruing after the effective date of this ordinance, under the terms of any preexisting ordinance, or imposed upon Grantee by subsequent action of Grantor shall, when paid to Grantor, be applied as a credit to the amount owed to Grantor under the terms of this franchise agreement. 4 - I SECTION 8 . Grantor, in accordance with Section 5.07 of the Gas Utility Regulatory Act, herewith finds that Grantee is entitled to recover in its rates the amounts payable to Grantor under Section 7 of this ordinance. To ensure that Grantee ' s rates are just and reasonable, Grantor herewith orders Grantee to revise its rate schedules as necessary to recover fully from customers within the corporate limits of Grantor the amounts payable to Grantor as set forth in Section 7 of this ordinance. Such rate schedules shall be filed with the Grantor and shall be effective with bills on and after the effective date of this ordinance. SECTION 9 . Grantee, its successors and assigns shall protect and hold Grantor and its officers, agents and employees harmless against any and all claims or demands for damages to any person or property by reason of the construc- tion and maintenance of Grantee' s natural gas distribution system, or in any way growing out of the rights granted by this ordinance, either directly or indirectly, or by reason of any act, negligence or nonfeasance of Grantee or the contractors, agents or employees of Grantee, its successors and assigns, and shall refund to Grantor all sums which Grantor may be adjudged to pay on any such claim, or which may arise or grow out of the exercise of the rights and privileges hereby granted, or by the abuse thereof, and Grantee, its successors and assigns shall indemnify and hold Grantor, its officers, agents and employees harmless from and on account of all damages, costs, expenses , actions and causes of action that may accrue to or be brought by a person, persons, company or companies at any time thereafter by reason of the exercise of the rights and privileges hereby granted, or of the abuse thereof. SECTION 10 . Grantee shall not prosecute or maintain any claims against Grantor or its employees for any damage or injury to Grantee' s pipelines or facilities resulting from Grantor' s performance of work or repairs upon city streets; 5 - provided, however, that the provisions hereof shall in no way limit Grantee' s right to prosecute or maintain any such claim against any person, association, or corporation other than Grantor or its employees. SECTION 11 . Grantee shall, upon Grantor' s written re- quest, relocate its facilities situated within any street, at no expense to Grantor, where reasonable and necessary to accommodate street construction or widening or other im- provement projects of Grantor. Grantee and the City Engi- neer for the City of Beaumont shall coordinate the timing and performance of such work to ensure that neither Grantor nor Grantee shall incur unreasonable delay or expense. SECTION 12 . Grantor, by granting of this ordinance, does not surrender or to any extent lose, waive, impair or lessen the lawful powers, claims and rights now or hereafter vested in Grantor under the Constitution and Statutes of the State of Texas and under the Charter of the City of Beaumont to regulate public utilities within Grantor' s city limits, to regulate the rates of public utilities within Grantor' s city limits and to regulate the use of the streets by Grantee; and Grantee, by its acceptance of this ordinance, agrees that all lawful powers and rights, whether regulatory or otherwise, as are or as may be from time to time vested in or . reserved to Grantor, shall be in full force and effect and subject to the exercise thereof by Grantor at any time and from time to time. SECTION 13 . In the event Grantee, by act or omission, violates any term, condition or provision of this ordinance, Grantor shall notify Grantee in writing of such violation. Grantee shall correct any such violation within thirty (30) days of receipt of such notice. Should Grantee fail or refuse to correct any such violation within such thirty (30) day period, Grantor may terminate this agreement by ordinance adopted by the City Council of the City of Beaumont; provided, however, before - 6 - any such ordinance is adopted, Grantee must be given at least sixty (60) days advance written notice, which notice shall set forth the causes and reasons for the proposed termination and cancellation, and shall advise the Grantee that it will be provided an opportunity to be heard by the City Council of the City of Beaumont regarding such proposed action before any such action is taken and shall set forth the time, date and place of the hearing. Other than its failure, refusal or inability to pay its debts and obligations, including, specifically, the payments to Grantor required by this ordinance, Grantee shall not be declared in default or be subject to any sanction under any provision of this ordinance in those cases in which perfor- mance of such provision is prevented by reasons beyond its control; provided, however, that such performance shall not be excused when based solely upon financial limitations of Grantee. SECTION 14 . Subject to the terms, conditions and restric- tions stated herein, within five (5) years of but not less than twelve (12) months before the expiration of the term of this franchise, Grantor shall have the option to purchase Grantee' s distribution system within the corporate limits of Grantor. Grantor must present Grantee with written notice of Grantor' s intent to exercise its option to purchase the franchised property. Within thirty (30) days of receipt of notice, Grantee shall make a written offer (the "Offer") stating the cash price for the purchase and sale of said distribution system. Within twenty (20) days of Grantor' s receipt of the Offer, Grantor will submit written notice rejecting or accepting the Offer. Should Grantor reject the Offer, Grantor and Grantee shall enter into good faith negotiations to determine a cash price to be paid by Grantor for said distribution system. Failure of Grantor and Grantee to agree on a cash price for Grantee' s distribution - 7 - i system shall not constitute grounds for termination or cancellation under Section 13 of this ordinance. Should Grantor accept the Offer or should Grantee and Grantor reach an agreement on a cash purchase price after good faith negotiations, Grantee shall not be required to sell or transfer said distribution system to Grantor until the expiration of the term of this franchise or such earlier time as may be mutually agreeable to Grantee and Grantor. The foregoing notwithstanding, Grantor shall not purchase Grantee ' s distribution system until the matter of the acquisition of such property has been submitted at a munici- pal election to be determined by a majority vote of the qualified taxpayers voting therein. Nothing in this franchise shall be construed as limit- ing or otherwise affecting Grantor' s authority, which Grantee hereby acknowledges, to acquire the franchised property under Grantor' s powers of eminent domain. SECTION 15 . Nothing herein contained shall ever be held or considered as conferring upon Grantee and its successors and assigns any exclusive rights or privileges of any nature whatsoever. SECTION 16 . This ordinance shall not be assigned by Grantee without the authorization and approval of Grantor. SECTION 17. All ordinances and parts of ordinances in conflict herewith are hereby repealed. SECTION 18 . Grantor and Grantee hereby acknowledge that all of the provisions hereof are the result of negotiations between Grantor and Grantee. The provisions of this ordi- nance shall be constructed fairly and reasonably and not more strictly against the party drafting such provisions than against the nondrafting party. SECTION 19 . This ordinance shall take effect and continue and remain in effect for a period of twenty (20) years from and after the date which is sixty (60) days after the adoption and passage of this franchise ordinance on third - 8 - i and final reading; provided Grantee files a written accep- tance of this franchise ordinance with Grantor within thirty (30) days after final passage of this franchise ordinance. SECTION 20 . If any provision, section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be unconstitutional, void or invalid (or for any reason unenforceable) , the validity of the remaining portions of this ordinance shall not be affected thereby, it being the intent of Grantor in adopting this ordinance that no portion hereof or provision or regulation contained herein shall become inoperative or fail by reason of any unconstitutionality or invalidity of any other portion, provision or regulation, and to this end, all provisions of this ordinance are declared to be severable. Read in full, passed and adopted on first reading at a regular meeting of the City Council of the City of Beaumont, Texas on this ,1��,/z/day of �=2zs4 g , 1988 and tl approved by the Mayor. ATTEST: APPROVED: CITY FLERK OF TIM f4AYOR OF THE CITY OF BEAUMONT, TEXAS CITY OF BEAUMONT, TEXAS Read in full, passed and adopted on second reading at a regular meeting of the City Council of the City of Beaumont, Texas on this,Y day of 1988 and approved by the Mayor. ATTEST: APPROVED: /wwz��_ CITY C ERK OF TH9 MAYOR OF THE CITY OF BEAUMONT, TEXAS CITY OF BEAUMONT, TEXAS 9 - Read in full and finally passed and adopted on third and final reading at a regular meeting of the City Council of the City of Beaumont, Texas on this k day of 1988 and approved by the Mayor. ATTEST: APPROVED: r CITY LER. °OF 'THE' MAYOR OF THE CITY OF�BEAU'M9NTF,�ttXAS CITY OF BEAUMONT, TEXAS } 10 -