O-1653-11-98ORDINANCE NO. 1653-11-98
' AN ORDINANCE OF THE CITY OF ALLEN, COLLIN COUNTY, TEXAS,
GRANTING TO COSERV LTD. D/B/A COSERV GAS, A FRANCHISE FOR THE
PURPOSE OF CONSTRUCTING, MAINTAINING AND OPERATING ITS GAS
UTHXrY SYSTEM IN PUBLIC STREETS, ALLEYS, AND RIGHTS-OF-WAY IN
THE CITY; RESERVING TO THE CITY THE RIGHT TO REGULATE GRANTEE;
PROVIDING CONDITIONS GOVERNING THE CONSTRUCTION, EXPANSION,
USE, RECONSTRUCTION, REPAIR, EXCAVATION, MAINTENANCE,
RELOCATION AND OPERATION OF THE GAS UTILITY SYSTEM; PROVIDING
FOR INDEMNIFICATION; PROVIDING FOR CITY USE AND JOINT USE OF
GRANTEE'S FACILITIES; PROVIDING FOR COMPENSATION; PROVIDING FOR
ACCOUNTING AND OTHER REPORTS; PROVIDING FOR CONDITIONS OF
ASSIGNMENT; PROVIDING FOR TERMINATION; PROVIDING FOR
ACCEPTANCE OF THE FRANCHISE; PROVIDING A REPEALING CLAUSE;
PROVIDING A SEVERABILITY CLAUSE; AND PROVIDING FOR THE
EFFECTIVE DATE OF SAID ORDINANCE.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ALLEN,
COLLIN COUNTY, TEXAS, THAT:
SECTION 1: Purpose.
a) That there is hereby granted to CoSery Ltd. hereinafter called Grantee for a term of six (6) years
commencing on the effective date of this franchise ordinance and (unless otherwise terminated herein),
the nonexclusive privilege to have, acquire, construct, extend, reconstruct, maintain, use and operate
in, along, across, on, over, through, above and under public streets, alleys and rights-of-way
(hereinafter referred to as "City property") in the City of Allen, Texas (hereinafter referred to as
"City") a gas utility system including, but not limited to, a gas transmission and distribution system,
the plant and equipment of Grantee, whether owned, operated, leased, licensed, used, controlled or
supplied for, by, or in connection with, the business of a gas utility as defined by the Gas Utility
Regulatory Act, as amended, and any associated equipment or plant, or other facilities designed and
constructed for the purpose of producing, transmitting or distributing gas (hereinafter referred to as
"utility system" or "facilities") in, out of, and through the City and to or from customers or locations
within the City.
b) The City may delegate to the, City Manager, or any other designated City official, and the Director of
Public Works or designated representative when specifically authorized by this ordinance, to exercise
of any and all powers, including required approvals, conferred upon the City by the Charter, City
ordinances or by general law relating to the administration and supervision of this Ordinance.
C) 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) or as
recognized by the Federal Communications Commission (the "FCC") without first obtaining a
separate franchise from the City. Grantee shall not provide telecommunication services or operate a
telecommunication system, as defined in the Public Utility Regulatory Act, subtitle C, TEx. UTE..
CODE, as amended, or any successor statute or law without fust obtaining a separate franchise or
consent from the City; provided however Grantee may use such technology in providing gas utility
services to its customers. This franchise is granted solely to Grantee providing gas utility services.
Grantee is not authorized to license or lease to any person or entity the right to occupy and use any of
the City's streets, alleys or rights-of-way for any purpose.
SECTION 2: Construction and Maintenance.
Work done in connection with the construction, maintenance, expansion, reconstruction, operation and use of
the utility system and facilities shall be subject to the following conditions:
a) General.
In addition to any other City ordinances, regulations or requirements, Grantee shall submit to
the Director of Public Works (or officials as the City Manager may designate from time to
time) detailed construction plans of all facilities to be installed, excavated, reconstructed,
repaired, or expanded in, on, above, across, or under City property prior to seeking a permit
from the City and prior to the commencement of such construction or other work. The
Director of Public Works shall review said plans and may require reasonable modifications in
order to protect existing or anticipated public improvements or other utilities. Grantee shall
then cause the appropriate modifications. Grantee shall not proceed with any construction,
repair, excavation or reconstruction until the plans and drawings have been approved by the
proper City officials. The Grantee shall obtain a permit from the City prior to
commencement of any construction except 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 or in City property in response to any emergency
situation. Any request for construction, reconstruction, repair, or expansion may be denied
by the City when, in the reasonable opinion of the Director of Public Works, the installation
of the proposed facility or such construction will unreasonably interfere with existing or
current use of the City property by other utilities or by the City, or if the City property will
not accommodate the facilities. The determination of the Director of Public Works may be
appealed to the City Manager whose decision shall be final.
Ordinance No. 1653-11-98 Page 2
Except as otherwise provided in this ordinance all construction, reconstruction, expansion
relocation, repairs, excavation, or other work performed by Grantee, and all facilities of the
Grantee which are designed and installed within City property shall be in accordance with all
lawful, reasonable and proper applicable City codes and ordinances, including, but not limited
to, City standard construction details, tree preservation regulations, the Comprehensive
Zoning Ordinance and the Subdivision Regulations, m may be hereafter adopted or amended.
Grantee shall maintain and/or repair such improvements to the infrastructure for a period of
two years from the completion and final acceptance of the improvements by the City, to
guarantee Grantee's performance of its obligations and faithful adherence to City construction
requirements. Grantee shall maintain and/or replace all landscaping material disturbed,
damaged, or destroyed by reason of construction for a period of one year, from the
completion and final acceptance of the affected improvements by the City, to guarantee
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Grantee's performance of its obligations and faithful adherence to the restoration of
landscaping disturbed, damaged, or destroyed by such construction.
b) Permit and Approval.
In addition to any other City ordinances, regulations or requirements, Grantee shall submit to
the Director of Public Works (or officials as the City Manager may designate from time to
time) detailed construction plans of all facilities to be installed, excavated, reconstructed,
repaired, or expanded in, on, above, across, or under City property prior to seeking a permit
from the City and prior to the commencement of such construction or other work. The
Director of Public Works shall review said plans and may require reasonable modifications in
order to protect existing or anticipated public improvements or other utilities. Grantee shall
then cause the appropriate modifications. Grantee shall not proceed with any construction,
repair, excavation or reconstruction until the plans and drawings have been approved by the
proper City officials. The Grantee shall obtain a permit from the City prior to
commencement of any construction except 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 or in City property in response to any emergency
situation. Any request for construction, reconstruction, repair, or expansion may be denied
by the City when, in the reasonable opinion of the Director of Public Works, the installation
of the proposed facility or such construction will unreasonably interfere with existing or
current use of the City property by other utilities or by the City, or if the City property will
not accommodate the facilities. The determination of the Director of Public Works may be
appealed to the City Manager whose decision shall be final.
Ordinance No. 1653-11-98 Page 2
c) Street Closure.
' In the event the construction, reconstnrction, repair, relocation, or maintenance of Grantee's
facilities requires the temporary closing of a traffic lane or lanes, the Grantee shall notify the
Director of Public Works not less than three (3) days prior to the construction. The Director
of Public Works 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. This provision shall not apply
to emergency repairs.
d) 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.
e) Restoration.
The City and Grantee shall use all reasonable caution to avoid disturbing the facilities of the
other party. The surface of any public street, alley, highway, sidewalk, right-of-way,
parkway, or landscaped area disturbed by the Grantee in the construction, relocation or
maintenance of any of its facilities shall be restored by Grantee within sixty (60) days after
completion of the work (except in the case of landscaping which shall be restored by Grantee
within ninety (90) days) to a condition equal to or better than the condition before
commencement of the work. The Grantee shall be responsible for maintaining all landscaping
for one (I) year from the date of completion of the restoration of the surface and all
appurtenant structures of the City property that are broken or excavated for construction or
maintenance work. Such surface and appurtenant structures shall be maintained to the
reasonable satisfaction of the Director of Public Works for two (2) years from the date of
completion of the restoration of the surface and all appurtenant structures of said street or City
Property that b broken or excavated for construction or maintenance work. No street or
other property shall be encumbered by construction, maintenance or other repair work by
Grantee for a longer period than shall be reasonably necessary to execute such work.
f) Abatement and Removal of Dangerous Facilities.
Upon request of the City, Grantee shall remove and abate any portion of the utility system or
any of its facilities that is unreasonably dangerous to life or property.
g) Location of Facilities.
Grantee shall provide, or cause to be provided, a locating service to all persons anticipating
construction in, or along the route of Grantee's utility system or facilities. Grantee shall
provide to the Director of Public Works a telephone number of persons responsible for
providing an accurate location of Grantee's facilities within the City. Upon receiving a
request, said facilities shall be located and marked within forty-eight (48) hours. Grantee
shall provide City upon request complete information regarding the location of all facilities
along with maps, plats, computer aided drawings (CAD), construction documents and
drawings as may exist or may be created from time to time.
Ordinance No. 1653-11-98 Page 3
h) Excavation.
All borings or excavations and other constructions in the public streets, alleys and rights-of-
way shall be carried on to interfere as little as practicable with the use of public and private
property and in accordance with any specific direction given by the Director of public Works.
Except in emergency, Grantee shall not bore or excavate any pavement in any public alley, or
street, or any public rightof--way without fust obtaining a permit and approval from the
Director of Public Works. The Director of Public Works shall be notified as soon as
practicable regarding work performed under emergency conditions.
i) Segment Construction Reports.
Within thirty (30) days of completion of each segment of Grantee's utility system, Grantee
shall upon written request, supply the City with a complete set of as -built drawings or CAD
files for that segment. After each replacement, relocation, reconstruction or removal,
Grantee shall promptly upon written request notify the City of the exact changes made and
shall upon written request provide to the Director of Public Works a new set of as -built
drawings or CAD files for each modification.
P 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
hearing and water hearing, 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 City 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 gas, electric or telephone fixture, water
hydrant, or main, drainage facility or sanitary sewer, or interfere with travel on or public use of streets, alleys
or other City property. The location and route of Grantee's facilities placed and constructed by the Grantee in
the construction and maintenance of the utility system in the public streets, alleys and rights-of-way shall be
subject to lawful, reasonable and proper control and direction of the City. Grantee shall submit to the
Director of Public Works, for approval, detailed plans which show the existing and proposed location and
route of all the Grantee's facilities in the City.
SECTION 4: Relocation.
Whenever by reason of the changes in the grade of City property, or in the location or the manner of
construction, repair, maintenance, relocation, widening, raising or lowering of any public street, alley, right-
of-way, water line or pipe, gas line or pipe, sewer, or any other underground or overhead facility or structure
for any reasonable and lawful purpose deemed necessary by the City, the Grantee shall at its own cost and
Ordinance No. 1653-11-98 Page 4
expense, move, relocate, change, alter or modify any of its facilities including underground or overhead
facilities located in any public street, alley, right-of-way or other property owned or occupied by the City;
such relocation shall be promptly made by Grantee when ordered in writing by the City, without claim for
reimbursement or damages against the City, provided however Grantee is permitted to relocate such facilities
in, on, along or above existing City property.
If the City shall require the Grantee to adapt or conform its facilities, or in any way or manner to alter,
relocate, or change its property to enable any other person or corporation, except the City, to use, or to use
with greater convenience, such street, alley, highway, or public place, the Grantee shall not be bound to make
such changes until such other person or corporation shall reimburse or make satisfactory arrangements for
reimbursement to the Grantee for any loss and expense caused by or arising out of such change; provided,
however that the City shall never be liable for such reimbursement.
SECTION 5: Underground Installation.
Grantee shall without cost to the City place, install and maintain its facilities, including'substitutions and
replacements underground. Grantee shall without cost to the City, immediately remove Grantee's existing
above ground facilities, if any, located in the City, and shall immediately place the facilities underground.
SECTION 6: Work by Others.
a) The City reserves the right to lay and permit to be laid, sewer, gas, water, and other pipe lines 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 street, alley, highway or City property
occupied by Grantee. The City also reserves the right to change in any manner any curb, sidewalk,
highway, alley, public way or street or the grade thereof. In permitting such work to be done, the
City shall not be liable to the Grantee for any damages so caused by the City, except to the extent
arising out of the negligence of the City, its agents or employees, however, nothing herein shall
relieve any other person or entity from liability for damage to Grantee's facilities. Except as
otherwise provided in this subsection, the City shall not be liable for any damage direct or
consequential damage to Grantee or its customers that stay arise from any interruption of service; and
Grantee shall hold the City harmless and indemnify the City for said damages.
b) The City reserves the right to authorize someone other than the Grantee to occupy City property. In
the event that the City authorizes someone other than the Grantee to occupy any public street, alley,
right-of-way, or other City property, such gram shall not unreasonably interfere with the non-
exclusive rights herein granted to Grantee. In the event the City shall close or abandon any street,
alley, or right-of-way, which contains existing facilities of the Grantee, any conveyance of land
containing such closed or abandoned street, alley, highway or City property shall be subject to the
non-exclusive rights herein granted; provided however, Grantee may be ordered to relocate from City
property so conveyed if an alternate location is provided.
SECTION 7: Reports and Records.
a) Grantee shall keep complete and accurate books of account and records of its business and operations
from which gross receipts may be determined. Copies of relevant portions of such books of accounts
and records shall be available to the City upon reasonable request. The City, shall have access to all
' books of accounts and records relating to the gross receipts 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 matters shall not be
disclosed by the City, except as needed to enforce the City's rights under this ordinance.
Ordinance No. 1653-11-98 Page 5
b) The City shall have the right, at reasonable times, to inspect the plant, equipment, and other property
of the Grantee, and to examine, audit and obtain copies of the papers, books, accounts, documents,
and other business records relating to the gross receipts of the Grantee consistent with State law.
C) Grantee shall, notify the City of filings relating to tariffs, rates, rate changes, merger, consolidation,
certification of service area, and deregulation, with the Texas Railroad Commission or its successor
and any other State or Federal regulatory agency or body; and shall upon reasonable demand permit
the City to inspect and copy the same. Grantee shall file with the City schedules showing all rates that
are: (1) subject to the City's original or appellate jurisdiction, and; (2) in effect for a gas utility
service, product, or commodity offered by Grantee; (3) each rule or regulation that relates to or
affects the rate of the Grantee, or Grantee's service, product or commodity furnished by Grantee; (4)
Grantee shall, upon request of the City, submit information as deemed necessary by the City to make
a reasonable determination of the rate base, expenses, investment, and rate of return in the City.
SECTION 8: Quality of Service
a) Grantee shall at all tines famish service which is modem and sufficient to meet reasonable demands
without undue interruption or fluctuations, many person, firm, or corporation that shall demand
service within the City. Grantee shall make service connections on reasonable demand, without
undue delay. Grantee covenants that it will furnish such service, instrumentalities, and facilities as we
safe, adequate, efficient, and reasonable. Notwithstanding anything herein to the contrary, this
section is not intended to cream or gram any rights, contractual or otherwise, many person, firm or
corporation demanding service within the City, but that the City to the extent allowed by law shall
have the right of enforcement of this section.
b) Grantee shall comply with all Texas Railroad Commission Regulations and Rules (of its successor) for
gas utility systems relating to customer service standards and any Service Rules and Regulations as
now in effect or hereinafter adopted or amended.
C) Grantee shall maintain a listed local or toll-free telephone number and employ a sufficient number of
telephone lines, personnel and answering equipment or service to allow reasonable access by
customers and members of the public to contact the Grantee on a full-time basis, twenty-four (24)
hours a day, seven (7) days a week including holidays.
d) Grantee shall develop written procedures for the investigation and resolution of all customer
complaints. Upon complaint to the Grantee by a customer at its office, either by letter or by
telephone, the Grantee shall promptly make a suitable investigation and advise the complainant of the
results thereof. A customer who has not been satisfied by following the Grantee's procedures may file
a written complaint with the City Manager, who will investigate the matter and, in consultation with
the Grantee as appropriate, attempt to resolve the matter. Grantee agrees to cooperate and assist the
City Manager with any such investigation. Grantee agrees to use its best efforts to resolve any
complaints. In the event that the Grantee, the City and the complain[[: shall be unable to resolve the
matter within a reasonable time, the affected parties shall submit the dispute to mediation as described
in Section 154.023 of the Texas Civil Practice and Remedies Code or a moderated settlement
conference as described in Section 154.025 of the Texas Civil Practice and Remedies Cale.
e) Grantee shall provide City with at least thirty (30) days advance written notice of any changes in rates,
charges or certificated service area and deregulation, where such changes apply to any area covered
by this franchise.
Ordinance No. 1653-11-98 Page 6
t) Grantee shall maintain a record of all unresolved complaints, showing the name and address of the
complainant, the date and nature of the complaint. These records shall be available for inspection by
' the City during normal business hours upon reasonable prior notice. Such records shall be retained
for at least two (2) years.
SECTION 9: Service Rates.
a) To the extent permitted by State or Federal law, the City 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, fully reserving to the City Council all the rights, powers, privileges and immunities,
subject to the duties and responsibilities which the constitution, the laws of the State, the charter and
this franchise confer upon the City.
b) In the event Grantee desires to propose changes in its general rates it may do so by filing an
application with the City Secretary for consideration of the City Council. 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, related to rates and charges, the City Council shall have full
power and authority to inspect, or cause to be inspected, the books of Grantee, and for good cause to
inventory and appraise, or cause to be inventoried and apprised, the property of Grantee, and to
compel the attendance of witnesses and the production of books and records, and to prescribe
penalties for the failure or refusal of Grantee to testify or produce books and records as required.
d) The City shall not allow as to rates or services an umeasonable preference or advantage to anyone
within a service classification, nor allow Grantee to subject anyone within a service classification to
any unreasonable prejudice or discrimination. Distinctions in rates and services between locations and
service classifications shall be reasonable and shall be approved by the City.
e) Nothing herein shall be deemed a waiver, release or relinquishment of the City's right to regulate the
rates and services of Grantee, the Grantee's rights under applicable law or either party's right to
contest or appeal any action or decision of the other parry to the Public Utility Commission or its
successor.
SECTION 10: Compensation.
a) For the reason that the use of City property Grantee in operation of its utility system and facilities is a
valuable property right without which Grantee would be required to invest substantial capital in right-
of-way costs and acquisition, the Grantee shall, as compensation for the rights and privileges herein
conferred, pay to the City during the tern of franchise a sum of money equal to four percent (4 To) of
the: (a) annual gross receipts received by Grantee from the sale of all gas energy within the City
including the sale of gas to other gas utilities for resale; (b) annual 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 the City (expressly excluding governmental users); (c) annual gross
receipts received by Grantee from the transportation of gas through the pipeline system of Grantee
within the City to residential, commercial and industrial customers within the City (expressly
excluding governmental users); and (d) the total cost of gas transported by Grantee for residential,
commercial and industrial customers within City of gas transported through the pipeline system of
Grantee within the City (expressly excluding governmental users) during the preceding calendar
quarter, which quarterly payments shall be for the rights and privileges herein granted to Grantee,
Ordinance No. 1653-11-98 Page 7
including expressly, without limitations, the right to use the City property. The fust payment
hereunder shall be equal to four percent (4%) of the gross receipts, as defined above, from the date of
acceptance of this ordinance through the last day of the fust full calendar quarter following acceptance
of this ordinance, and shall be made within thirty-one (31) days following the last day of the quarter
period for which the payment is calculated; and thereafter payment shall be made quarterly within
thirty-one (31) days after the expiration of the most recently ended calendar quarter. Each quarter's
payment shall be equal to four percent (4%) of that quarter's actual gross receipts. For example, the
quarterly payment due on or before October 31st shall be equal to four percent (4%) of the actual
gross receipts of Grantee from the sale of electric energy as described above during the months of
July, August and September. The Grantee shall file with the City Manger within thirty-one (31) days
after the expiration of each quarter of each calendar year or portion thereof during which the franchise
is in effect, a detailed statement showing the gross receipts collected during the preceding quarter of
the calendar year. Such statement shall be accompanied by the Grantee's four percent (4%) payment
of the annual gross receipts for such quarter.
b) Grantee agrees that on the same date that payments are made, as provided in this Section 12, it will
file with the City Secretary a sworn report showing 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 the 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. The City may, if it sees fit, have the books and records of Grantee
examined by a representative of the City to ascertain the correctness of the sworn reports agreed to be
filed herein.
C) 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 coast 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 costs 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 shall utilize a price equal
to the index (large packages only) price per MMBm 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.
d) At the end of each fiscal year of Grantee, there shall be a reconciliation of the difference in the
quarterly payments for the preceding calendar year and the four percent (4%) compensation. Grantee
Ishall pay the difference to the City within thirty (30) days after the end of Grantee's fiscal year
Ordinance No. 1653-11-98 Page 8
e) The compensation provided herein shall be in lieu of any other license, charge, fee, street or alley
rental or other character of charge for use and occupancy in the streets, alleys and public places which
the City may impose or may hereafter be authorized to impose and collect, excepting ad valorem,
sales and use taxes, and special taxes and assessments for public improvements.
d) As additional compensation for the use of City property prior to the acceptance of this ordinance,
Grantee agrees to pay a sum of money equal to two percent (2%) of the gross receipts as defined in
(a) above, received by Grantee from January 1, 1990 through the date of Grantee's acceptance of this
ordinance; and shall be paid within thirty-one (31) days following the date of acceptance.
SECTION 11:
a) The rights granted by the Ordinance inure to the benefit of Grantee, and any parent, subsidiary,
affiliate or successor entity now or hereafter existing. The rights shall not be assignable without the
express written consent of the City Council except Grantee may assign its rights under this Ordinance
to a parent, subsidiary, affiliate or successor entity, without such consent so long as (i) such parent,
subsidiary, affiliate or successor assumes all obligations of Grantee, and (ii) is bound to the same
extent as Grantee. However, in all instances no such assignment shall be valid unless a copy of the
assignment is delivered to the city within twenty (20) days of the assignment. Any required consent is
to be evidenced by an ordinance or resolution of the City Council of the City that fully recites the
terms and conditions, if any, upon which consent is given.
b) The terms and conditions contained in this ordinance shall be binding upon Grantee, its successors and
assigns.
SECTION 12: Governing law.
This franchise is subject to all applicable State laws, the provisions of the City Charter and the ordinances of
the City now in effect or as may hereafter be adopted or amended. This franchise agreement 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 of Texas, as amended, or its successor.
SECTION 13: Indemnification.
a) The Grantee shall pay, and by its acceptance of this franchise specifically agrees thit it will pay, the
following:
1) Damages. All damages which the City, its officers, agents or employees, may legally be
required to pay as a result of damages arising out of the installation, maintenance, or
operation by the Grantee of its facilities within the public rights-of-way of the City, whether
or not any act or omission complained of is authorized, allowed, or prohibited by this
franchise; and
2) Expenses. All expenses incurred by the City in defending itself, its officers, agents or
employees, against any and all claims for damages described in Section 17(a)(1) above
provided the City gives the Grantee prompt notice of any such claim and the opportunity to
defend such claim. These expenses shall include all out-of-pocket expenses, such as, but not
limited to, attorney fees, expert witness fees and court costs and shall also include the
reasonable value of any services rendered by any officers or employees of the City.
Ordinance No. 1653-11-98 Page 9
It is the intent of this section and by its acceptance of this franchise the Grantee specifically agrees that
the Grantee shall indemnify and hold the City, its officers, agents and employees, harmless from all
1 liability, damage, cost or expense wising from claims for injury to persons, damage to property or
penalties to the extent caused by any conduct of Grantee undertaken by reason of this franchise. The
City shall not and does not by reason of the granting of this franchise assume any liability of the
Grantee whatsoever for injury to persons, damage to property or penalties.
This provision is not intended to create a cause of action or liability for the benefit of third parties, but
is solely for the benefit of the Grantee and the City.
The Grantee shall, at all times during the existence of this franchise, carry insurance as follows:
1) Workers' Compensation Insurance in accordance with the laws of the State of Texas.
2) Public Liability Insurance with a combined single limit of One Million Dollars
($1,1100,000.00) per accident.
SECTION 14: Annexation; Disannexation.
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. The
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 from the date 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. The compensation under this franchise agreement shall
include annexed areas 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 any term, condition or provision
of this franchise and fails or refuses to effect compliance within thirty (30) days following written demand for
compliance by the City following such hearing.
SECTION 16: Repealing Clause.
That all ordinances of the City of Allen, Texas, in conflict with the provisions of this ordinance be, and the
same are hereby, repealed, and all other provisions not in conflict with the provisions of this ordinance shall
remain in full force and effect.
SECTION 17: Severability.
If any word, phrase, paragraph, section or portion of this ordinance is held to be illegal, invalid or
unenforceable, the legality, validity and enforceability of the remaining portions of the ordinance shall not be
affected thereby, and in lieu of each such illegal, invalid or unenforceable word, phrase, paragraph, section or
portion, Grantee shall negotiate in good faith with the City to add to the ordinance a legal, valid and
enforceable word, phrase, paragraph, section or portion as similar as possible to the portion declared illegal or
unenforceable.
Ordinance No. 1653-11-98 Page 10
SECTION 18: Acceptance; Effective Date.
' Grantee shall within thirty (30) days after final passage of this ordinance file with the City Manager a written
instrument accepting this franchise ordinance and all terms and conditions thereof, signed and acknowledged
by its proper officer in the following form:
To the City Council of the City of Allen:
Grantee, acting by its duty authorized official hereunto accepts this
Ordinance No. , hereby authorizing a
franchise agreement with Grantee.
0
Executed this _ day of , 199_
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 third and final reading of this ordinance, this ordinance shall terminate
and become mill and void.
Passed on the first reading by the City Council of the City of Allen, Texas, on the 5th day of November,
1998.
Passed on the second reading by the City Council of the City of Allen, Texas, on the 19th day of November,
' 1998.
Passed on the third and final reading by the City Council of the City of Allen, Texas, on the 3rd day of
December, 1998.
L
DULY PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF ALLEN, COLLIN
COUNTY, TEXAS, ON THIS THE 3RD DAY OF DECEMBER. 1998.
APPROVED:
f
Stephen Terrell, MAYOR
APPROVED AS TO FORM: ATTEST:
e er G. smWAcTiNG CITY ATTORNEY 31my Mo ' n, CMC, CITY SECRETARY
Ordinance No. 1653-11-98 Page 11