726929357
On motion by Council Member ________ and seconded by Council Member _______, the following ordinance was introduced:
ORDINANCE NO.
An ordinance of the City of Gretna, Louisiana, granting to Atmos Energy
Corporation (A Texas and Virginia Corporation with its principal office in the
City of Dallas, Dallas County, Texas) and its successors and assigns the franchise and rights to conduct in such city the business of acquiring, maintaining, constructing, laying, repairing, removing, replacing, installing, operating and disposing of a gas system for the sale, transportation and distribution of natural gas within and beyond the municipal boundaries of the
City and to the residents and businesses located therein for light, heat, power and any other purposes and the right to use the present and future streets, roads, highways, alleys, bridges, public ways and immovable property in such city and owned or controlled by such city for such purposes; prescribing the terms and conditions to which such franchise and rights are subject; and prescribing the term of such franchise and rights.
BE IT ORDAINED by the Mayor and the City Council of the CITY OF GRETNA,
LOUISIANA (hereinafter referred to as the “
CITY
”) that, subject to the terms and conditions hereinafter set forth, ATMOS ENERGY CORPORATION, a Texas and Virginia corporation with its principal office in the City of Dallas, Dallas County, Texas (hereinafter referred to as
“ATMOS”), be, and hereby is, granted the non-exclusive franchise and rights to conduct in the
CITY the business of acquiring (by purchase, lease, or otherwise), maintaining, constructing, laying, repairing, removing, replacing, installing, operating, and disposing of (by sale, lease, or otherwise) a Gas System, hereinafter defined, for the sale, transportation, and distribution of natural gas within and beyond the municipal boundaries of the CITY and to the residents and business located therein for light, heat, power, and any other purpose during the term set forth below. Subject to the terms and conditions hereinafter set forth , such franchise and rights shall include, but not be limited to, the non-exclusive right to use the present and future streets, roads, highways, alleys, bridges, public ways, and other immovable property owned by or under the control of the CITY solely for purposes of performing necessary, usual and reasonable acts of maintaining, constructing, laying, repairing, removing, replacing, installing, and operating any and all components of the Gas System, together with access, at all times and from time to time, to such streets, roads, highways, alleys, bridges, public ways, and other immovable property during the term hereof. The terms and conditions of the non-exclusive franchise and rights agreed upon between the parties are hereinafter sometimes referred to as “agreement” or
“Ordinance”.
ARTICLE I
DEFINITIONS
For purposes of this Ordinance, the following terms shall have the meanings set forth below:
Section 1.1. Gas System. The term “Gas System” shall mean any and all pipelines, as hereinafter defined, regulators, meters, valves, compressors, anti-corrosion items, facilities, structures, machinery, equipment, and appurtenances of any kind that ATMOS Energy, in its sole discretion, may deem necessary or advisable for the exercise of the franchise and rights granted to ATMOS herein. The Gas System shall be in compliance with federal and state laws and regulations and in compliance with normal and usual industry standards.
Section 1.2. Pipelines. The term “pipelines” shall mean any and all above-ground and below-ground pipes, including but not limited to, mains, distribution lines, secondary lines, laterals, and other pipes, that have been, are being, or are intended to be used at any time in, or in connection with, the sale, transportation, or distribution of natural gas within and beyond the
CITY limits.
ARTICLE II
TERM
Section 2.1. Term. The term of the franchise agreement and rights hereby granted to
ATMOS shall be for a period of twenty-five (25) years, commencing on the later of (i) thirty (30)
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days after the date of publication of this Ordinance in accordance with law or (ii) the expiration of the franchise granted by CITY and held by ATMOS immediately preceding this franchise.
ARTICLE III
GRANT OF SPECIFIC RIGHTS TO ATMOS ENERGY
In addition to the franchise and rights granted herein to ATMOS, the CITY acknowledges that ATMOS has, and hereby grants to ATMOS, the following rights and powers:
Section 3.l. Reconnection Charges. In addition to any and all other proper charges,
ATMOS may charge and collect from any consumer whose service has been discontinued by
ATMOS a reasonable reconnection fee or similar charge for recommencing service to such consumer.
Section 3.2. Adoption of Rules. From time to time during the term hereof, ATMOS may, subject to any and all valid and applicable statutes, ordinances, rules, and regulations of any federal or state governmental authority or agency, make and enforce reasonable rules pertaining to ATMOS’s business and operations, including, but not limited to, requiring payment on or before a specified day each month for all services furnished during the preceding month with the right to disconnect and discontinue service to delinquents.
Section 3.3. Removal of Gas System. ATMOS may remove all or any portion of the Gas
System upon the expiration or termination of the franchise and rights granted hereby. {DOES
THE CITY WANT THIS TO BE MANDATORY OR THAT IF SYSTEM IS NOT REMOVED
WITHIN A CERTAIN TIME PERIOD THE GAS SYSTEM OWNERSHIP IS TRANSFERRED
TO THE CITY.}
Section 3.4. Right of Use. ATMOS is hereby specifically granted a non-exclusive right of use during the term of this agreement on all present and future streets, roads, highways, alleys, bridges, public ways, and other immovable property owned by or under the control of the CITY solely for purposes of performing necessary, usual and reasonable acts of maintaining, constructing, laying, repairing, replacing, installing, and operating any and all components of the
Gas System, together with access, at all times and from time to time, to such streets, roads, highways, alleys, bridges, public ways, and other immovable property during the term hereof.
Section 3.5. Title to Right-of-Way and CITY Property.
Nothing in this Agreement is intended to or shall create any permanent servitudes or rights-of-way in favor of ATMOS.
Nothing in this agreement is intended to or shall act as a warranty, guaranty or representation of the nature or extent of CITY’s title, interest, or rights in or to the property or rights-of-way used by ATMOS.
ARTICLE IV
OBLIGATIONS OF ATMOS
Section 4.1 Franchise Fee. {DISCUSS WITH CITY}
(a) As consideration for the grant of the franchise and rights herein and for the use by
ATMOS of the streets, roads, highways, alleys, bridges, public ways, and other immovable property owned or controlled by the CITY, ATMOS shall pay to the
CITY, within thirty (30) days after the end of each calendar quarter, a franchise fee equal to two percent (2%) of ATMOS’ gross receipts derived from any operations performed pursuant to this agreement including but not limited to gross receipts
{DISCUSS THIS WITH CITY} derived from the sale, transportation, and distribution , including reconnection charges, by ATMOS of natural gas at retail
{“AT RETAIL” WHAT DOES THIS TERM EXCLUDE; ADDRESS DLC’S
COMMENT; ALSO THE PRIOR AGREEMENT SPECIFICALLY EXCLUDED
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“ANY SALE FOR INDUSTRIAL PURPOSES OR FOR RESALE WITHIN THE
CORPORATE LIMITS OF THE MUNICIPALITY”} to residential and commercial consumers located within the CITY limits during the preceding calendar quarter.
(b) The franchise fee, together with any and all charges of the CITY for water, sewage, and garbage services provided by the CITY to ATMOS, any and all sales taxes collected by ATMOS, and any and all ad valorem taxes assessed by the CITY against ATMOS' property, shall constitute the only amounts operating charges or taxes for which ATMOS shall be obligated to pay to the CITY {DOES THE CITY
WANT TO ADD ANY OTHER CHARGES, FEES OR TAXES TO THIS LIST,
WHICH OTHER BUSINESSES MAY BE CHARGED} and shall be in lieu of any and all other operating costs, levies, assessments, fees, or other operating amounts, of any kind whatsoever , that the CITY, currently or in the future, may charge
ATMOS or assess against ATMOS’ property.
This provision shall not relate in any way to amounts and/or obligations due by ATMOS to the CITY pursuant to the obligations of this agreement or obligations which are not related to routine and customary operations under this agreement, or which relate to any obligations of
ATMOS relating to insurance, a breach of this agreement, and/or Articles V and VI of this agreement.
Section 4.2. No Obstruction of Public Property. ATMOS shall not unnecessarily or for any unreasonable period of time obstruct or interfere with the public or CITY use of any of the streets, roads, highways, alleys, bridges, public ways, or other immovable property owned or controlled by the CITY.
Section 4.3. Repair of Damages. ATMOS shall repair , at its own expense, any and all damages caused solely by ATMOS to any streets, roads, highways, alleys, bridges, public ways, or other immovable property owned or controlled by the CITY , or any other immovable property not owned or controlled by the CITY, and shall restore , as nearly as practicable, such property to substantially its condition immediately prior to the incident or acts causing such damage.
ATMOS shall commence such repairs immediately upon completion of the work or activity in which ATMOS was involved at the time the damage occurred and shall complete such repairs as promptly as possible and without unreasonable delay . {NEED TO REVIEW WITH MAYOR
HIS COMMENTS REGARDING INTERSECTIONS AND ADA STANDARDS, AND BRASS
LETTERING}
Section 4.4. Conduct of Work and Activities. ATMOS shall use reasonable care in conducting its work and activities in order to prevent injury to any person and unnecessary damage to any immovable or personal property. ATMOS shall use reasonable care to maintain, including the appearance of, its Gas System, equipment and facilities. ATMOS is bound to conduct its operations in accordance with all Federal and State laws and regulations and its own safety rules and operating procedures.
Section 4.5. Extension of Gas System. ATMOS shall, at its sole expense, extend its Gas
System in order to serve additional consumers in accordance with the Standard Terms and
Conditions for Natural Gas Service as now approved or as may hereafter be approved by the
Louisiana Public Service Commission.
Section 4.6. Notification of Obstruction or Damage. ATMOS must notify CITY representatives {OR SPECIFY NAME} at (504) _________________ as follows:
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(a.) at least twenty four (24) hours (or as immediately as practical in the event of an emergency) before performing any work on streets and/or rights-of-way which will substantially obstruct the street or right-of-way;
(b.) as immediately as practical, of any damages and/or injury which may have been caused by ATMOS to any entity, individual, business, street, right-of-way, or other immovable property.
Section 4.7. Service to New Areas. If during the term of this franchise the boundaries of the CITY are expanded, the CITY will promptly notify ATMOS in writing of any geographic areas annexed by the CITY during the term hereof (“Annexation Notice”). Any such
Annexation Notice shall be sent to ATMOS by certified mail, return receipt requested, and shall contain the effective date of the annexation, maps showing the annexed area and such other information as ATMOS may reasonably require in order to ascertain whether there exist any customers of ATMOS receiving natural gas service in said annexed area. To the extent there are such ATMOS customers therein, then the gross revenues receipts of ATMOS derived from any operations performed pursuant to this agreement including but not limited to gross receipts
{DISCUSS THIS WITH CITY}from the sale and distribution of natural gas to such customers shall become subject to the franchise fee provisions hereof effective on the first day of
ATMOS’s billing cycle immediately following ATMOS’s receipt of the Annexation Notice. The failure by the CITY to advise ATMOS in writing through proper Annexation Notice of any geographic areas which are annexed by the CITY shall relieve ATMOS from any obligation to remit any franchise fees to CITY based upon gross revenues receipts derived by ATMOS from the sale and distribution of natural gas to customers within the annexed area until CITY delivers an Annexation Notice to ATMOS in accordance with the terms hereof.
Section 4.8. Compliance with Laws and Safety Rules {LAST SECTION TO ADD-
REGARDING ENVIRONMENTAL SAFETY AND HAZARDOUS SUBSTANCE RELEASE}
Section 4.9. Termination of Agreement. CITY has the right to terminate this agreement in accordance with Article V if ATMOS has in any way breached any of the terms or conditions of this agreement.
ARTICLE V
DEFAULT AND TERMINATION
This franchise agreement is subject to termination as follows:
Section 5.1.
CITY may terminate this agreement by serving notice in writing on ATMOS upon the default or nonperformance of any of the obligations and/or covenants and/or terms contained in this agreement, including the obligations of payment and ATMOS’s failure to remedy such default or nonperformance within a period of sixty (60) days after written notice of the default or nonperformance.
Section 5.2.
Any waiver by CITY of any default will not constitute a waiver of the right to terminate this agreement for any subsequent default, nor will any such waiver in any way affect CITY’s ability to enforce any provision of this agreement. The remedy set forth in this
Section will be in addition to, and not in limitation of, any other remedies that CITY may have at law or in equity.
Section 5.3.
Termination of this agreement, or expiration of the term of this agreement, shall not release ATMOS from any liability or obligation, whether of indemnity or otherwise, resulting from any events happening prior to the date of termination.
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ARTICLE VI
INSURANCE AND INDEMNIFICATION
Section 6.1. Insurance Requirements. Before any work or actions are performed by
ATMOS pursuant to this franchise agreement, ATMOS must arrange for CITY to be named an additional insured on its General Public Liability insurance policies and provide to CITY a certificate of insurance verifying that coverage is in place and copy of the policy for review by our insurance representative and/or attorneys. CITY’s grant of this franchise is contingent upon
ATMOS providing certificates of insurance proving that ATMOS has liability insurance in place covering liability arising from the acts to be performed by ATMOS pursuant to this agreement.
Section 6.2. Compliance with Insurance Requirements Does Not Affect Indemnity
Liability or Recoverable Damages. The fact that ATMOS obtains insurance will not release or diminish its liability, including, without limitation, liability under the indemnity provisions of this Agreement. Damages recoverable by CITY will not be limited by the amount of the required insurance coverage.
Section 6.3. Liability, Release And Indemnity. To the fullest extent permitted by law,
ATMOS shall RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS CITY AND ITS
OFFICIALS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LEGAL REPRESENTA-
TIVES, PARTNERS, SUCCESSORS, AND ASSIGNS (collectively “CITY”), for, from and against any and all claims, liabilities, fines, penalties, costs, damages, losses, liens, causes of action, suits, demands, judgments and expenses (including, without limitation, court costs, attorneys’ fees and costs of investigation, removal and remediation and governmental oversight costs) environmental or otherwise (collectively “liabilities”) of any nature, kind or description in any manner arising from, growing out of, or incident to the acts or omissions of ATMOS,
ATMOS’s Gas System and/or pipelines, ATMOS’s occupation and use of CITY’s property, servitudes or rights-of-way, and/or the environmental condition and status of the Gas System, pipelines, and/or ATMOS’s operation including but not limited to liabilities caused by, aggravated by, or contributed in whole or in part, by ATMOS’s acts or omissions or the acts or omissions of its officers, agents, invitees, employees, subcontractors, or anyone directly or indirectly under the employment or control of ATMOS or its officers, agents, invitees, employees, or subcontractors.
Even if such liabilities arise from or are attributed to, in whole or in part, the strict liability or negligence of CITY, the only liabilities with respect to which ATMOS’s obligation to indemnify CITY does not apply are liabilities to the extent proximately caused by the gross negligence or willful misconduct of CITY.
Notwithstanding the limitation in the previous paragraph, to the fullest extent permitted by law, ATMOS agrees, now and forever, to waive any and all claims, regardless of whether based on strict liability, negligence or otherwise, that CITY is an “owner,”
“operator,” “arranger,” or “transporter” in connection with this agreement, for the purposes of CERCLA or other environmental laws. ATMOS will indemnify, defend and hold CITY harmless from any and all such claims regardless of its negligence. In no event will CITY be responsible for the environmental condition of ATMOS’s Gas System, pipelines, and/or operations.
If any paragraph, provision, or part of this section is prohibited by, or held to be invalid under applicable law, that paragraph, provision or part will be ineffective solely to the extent of that prohibition or invalidity, and will not invalidate the remainder of that paragraph, provision or part, or this section or any other provision of this agreement.
Upon written notice from CITY, ATMOS will assume the defense of any lawsuit or other proceeding brought against CITY by any entity or individual, relating to any matter covered by this agreement for which ATMOS has an obligation to assume liability for or to save and hold harmless CITY. ATMOS will pay all costs incident to such defense,
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including, but not limited to, attorneys’ fees, investigators’ fees, litigation and appeal expenses, settlement payments, and amounts paid in satisfaction of judgments, including pre- and post-judgment interest.
(a) All movable property, personal property, equipment and fixtures, which belongs to or is under the control of ATMOS, located within the CITY limits will be at ATMOS’s risk and CITY will not be liable for any damage or theft of such items, whether or not due in whole or in part to the negligence of CITY during the term of this agreement.
ARTICLE VII
NOTICES
Unless otherwise expressly stated, all notices and communications concerning this agreement shall be addressed to the parties at the following addresses, or at such other address as either party may designate in writing to the other. Except where otherwise provided, written notice shall be sent via Certified or Registered Mail, Return Receipt Requested, and a courtesy copy of the notice shall be sent by facsimile. Notice will be effective upon actual receipt or refusal of delivery of the Certified or Registered Mail. The addresses and facsimile numbers of the parties are as follows:
ATMOS:
ATMOS ENERGY CORPORATION
Attn: ________________________
___________________, Suite ____
____________________________
Telephone: ___________________
Facsimile: ____________________
CITY:
CITY OF GRETNA
Attn:
____________________________
Gretna, LA 70053
Telephone: (504) ______________
Facsimile: (504) _______________
ARTICLE VIII
GENERAL PROVISIONS
Section 8.1. Force Majeure. Notwithstanding anything expressly or impliedly to the contrary contained herein, in the event ATMOS is prevented, wholly or partially, from complying with any the obligation or undertaking of operating its Gas System, as described contained herein by reason of any an event of force majeure, as defined herein , then, while so prevented, compliance with such obligations or undertakings of operating its Gas System shall be suspended , until, and only until, circumstances would reasonably allow operations to recommence
. The term “force majeure,” as used herein, shall mean any cause not reasonably within ATMOS’s control and includes (if not reasonably within ATMOS’s control) , but is not
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limited to, acts of God, strikes, lock-outs, wars, terrorism, riots, orders or decrees of any lawfully constituted federal, state, or local body, contagions or contaminations hazardous to human life or health, fires, storms, floods, wash-outs, explosions, and unusual and substantial breakages or accidents to machinery or lines of pipe ., inability to obtain or the delay in obtaining rights-ofway, materials, supplies, or labor permits, temporary failures of gas supply, or necessary repair, maintenance, or replacement of facilities used in the performance of the obligations contained in this Ordinance. This provision shall not apply in any way to amounts and/or obligations due by
ATMOS to the CITY pursuant to the obligations of this agreement or obligations which are not related to routine and customary operations under this agreement, or which relate to any obligations of ATMOS relating to insurance, a breach of this agreement, and/or Articles V and
VI of this agreement.
Section 8.2. Amendments. This Ordinance and the franchise and rights granted herein may be amended only by written agreement of the CITY and ATMOS to such amendment.
Section 8.3. Repeal of Conflicting Ordinances. All other ordinances of the CITY or portions thereof that are in conflict or inconsistent with any of the terms or provisions of this
Ordinance are hereby repealed null and void for the purposes of this agreement only to the extent of such conflict or inconsistency. {DISCUSS WITH MAYOR HIS ISSUE WITH THIS
PROVISION; ONE EXPLANATION OF THIS PROVISION IS THAT WE CAN NOT AGREE
TO CERTAIN TERMS IN THIS AGREEMENT AND THEREAFTER ARGUE THAT THE
TERMS ARE IN VIOLATION OF AN EXISTING ORDINANCE}
Section 8.4. Severability. In the event any part of this Ordinance is determined to be invalid or illegal for any reason whatsoever, such invalidity or illegality shall not affect the validity or legality of this Ordinance as a whole or of any parts hereof.
Section 8.5. Binding Effect. This Ordinance shall extend to, be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns.
Section 8.6. Section and Other Headings. The section and other headings contained in this Ordinance are for reference purposes only and shall not affect in any way the meaning or interpretation of this Ordinance.
ATTEST:
_________________________________
City Clerk
By: ________________________________
Mayor
ACCEPTED:
ATMOS ENERGY CORPORATION
By: _______________________________
Tom Hawkins
President (Louisiana Division)
Provided that a majority of the City Council of the City of Gretna have voted in favor of this ordinance, this ordinance shall have the full force and effect of law at midnight on the tenth day following the Clerk's presentment of same to the Mayor, in accordance with Louisiana
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Revised Statutes 33:406(c)(2) unless the Mayor returns same, unsigned, to the Clerk during that ten-day period.
This ordinance having been submitted to a vote, the vote thereon was as follows:
Yeas:
Nays:
Absent:
ADOPTED:
______________________________
CITY CLERK
CITY OF GRETNA
STATE OF LOUISIANA
Ordinance presented to the
Mayor on
______________________________
CITY CLERK
APPROVED:
_________________________________
MAYOR
CITY OF GRETNA
STATE OF LOUISIANA
Ordinance returned from the
Mayor on
__________________________________
CITY CLERK
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