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Ordinance No. 2,359139 i M ORDINANCE NO. 2359 AN ORDINANCE GRANTING ENTEX, INC., ITS SUCCESSORS AND ASSIGNS, THE RIGHT, PRIVILEGE AND FRANCHISE FOR A PERIOD OF FORTY (40) YEARS TO CONSTRUCT, LAY, MAINTAIN, OPERATE, EXTEND, REMOVE, REPLACE AND REPAIR A SYSTEM OF PIPE LINES, 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 BAYTOWN, HARRIS COUNTY, TEXAS, FOR THE PURPOSE OF TRANSPORTING, 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 MUNICIPALITY OF SAID CITY OF BAYTOWN, TEXAS, AND ITS INHABITANTS AND OTHERS; PRO- VIDING CONDITIONS CONTROLLING THE USE OF PUBLIC THOR- OUGHFARES AND EXTENSIONS THEREIN; ESTABLISHING STANDARDS OF SERVICE; PROVIDING FOR PAYMENT OF THREE PERCENT (30) OF THE GROSS RECEIPTS FROM THE SALE OF GAS FOR RESIDEN- TIAL, SMALL COMMERCIAL, AND LARGE COMMERCIAL PURPOSES WITHIN THE CITY; PROVIDING FOR ACCEPTANCE; PROVIDING A SEVERABILITY CLAUSE; MAKING MISCELLANEOUS PROVISIONS; AND REPEALING ALL ORDINANCES IN CONFLICT HEREWITH. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That, the City of Baytown, Harris County, Texas, herein called "Grantor ", does hereby grant unto Entex, Inc., its successors and assigns, herein called "Grantee ", the right, privilege, and franchise to construct, lay, maintain, operate, use, extend, remove, replace and repair in, under, over, across, and along any and all of the future and present streets, avenues, parkways, squares, alleys, thoroughfares, roads, highways, sidewalks, viaducts, bridges, streams, public grounds, public properties, and other public places in the City of Baytown, 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, pipe lines, gas mains, laterals, conduits, feeders, regulators, meters, fixtures, connections, and attachments and other desirable instrumen- talities and appurtenances necessary or proper, for the 814 U dew purpose of n-csnsporLling, di,-.,tributinp�, F, ?I) i n 7> upplying and sell gas (natural and/or ar-tificial and/or mixed) for h �,,a t 111 g , 610011- lighting, power and for any other purpose for which gas may now or hereafter be used in and 'to said municip,,,-Llity and its inhabitants or any other person or persons within or without the corporate boundaries of said municipality. Section 2: All pipe, fittinr.,rs, fJxtures and equipment installed by Grantee shall be of sound mt-tterial, and good quality and maintained so as not 'to interfere unreasonably with traffic over the public thoroughfares of said municipality and the same shall be laid in accordance with the lincs, grades, and conditions established by G:t,antor. The Grantee shall at all. times keep on file in the office of the Director of Public Works, its most current map or set of maps of its system within the City. As extensions of pipe lines are made, from time -to time, the Grantee shall file with the Director of Public Works maps or plans showing the extension. No paving cuts shall be made by -the Grantee without first obtaining the permission of the City 11anager or his delegate. Section 3: The surface of any public road, highway, streets, lanes, alleys, or other public place disturbed by Grantee in laying, constructing, maintaining, operating, usin.-, extending, removing, replacing, or repairing its piping system shall be restored immediately after the com- pletion of the work to as good a condition as before the commencement of the work and maintained to the satisfaction of the Director of Public Works for one (1) year from the date of completion of said work, after which -time respon- sibility for the maintenance shall become the duty of the pi IC-rnft-n+e-e No public road, highway, street, lane, alley, or other public place shall be encumbered by construction, -2- Fm aims purpose of transporting, distributing, 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: All pipe, fittings, fixtures and equipment installed by Grantee shall be of sound material and good quality and maintained so as not to interfere unreasonably with traffic over the public thoroughfares of said municipality and the same shall be laid in accordance with the lines, grades, and conditions established by Grantor. The Grantee shall at all times keep on file in the office of the Director of Public Works its most current map or set of maps of its system within the City. As extensions of pipe lines are made, from time to time, the Grantee shall file with the Director of Public Works maps or plans showing the extension. No paving cuts shall be made by the Grantee without first obtaining the permission of the City Manager or his delegate. Section 3: The surface of any public road, highway, streets, lanes, alleys, or other public place disturbed by Grantee in laying, constructing, maintaining, operating, using, extending, removing, replacing, or repairing its piping system shall be restored immediately after the com- pletion of the work to as good a condition as before the commencement of the work and maintained to the satisfaction of the Director of Public Works for one (1) year from the date of completion of said work, after which time respon- sibility for the maintenance shall become the duty of the Grantee. No public road, highway, street, lane, alley, or other public place shall be encumbered by construction, -2- id 141 maintenance or removal work by Grantee for a longer period than shall be necessary to execute such work. If there is in the opinion of the City Council an unreasonable delay by the Grantee in restoring and maintaining streets, highways, parks and alleys after excavation, repairs and extensions have been made, the Grantor shall have the right without further notice to restore or repair same and require the Grantee to pay the reasonable cost of so restoring or repairing them. Section 4: Grantee at its own expense shall run or extend not more than one hundred (100) feet of main, not to exceed a maximum diameter of two (2) inches, in order to bring gas service to the property line of each additional base load customer. Section 5: 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. Grantee may require reasonable security for the payment of its bills. Section 6: It shall be the Grantee's obligation as provided in Section 5 to furnish good quality natural gas service to the public at reasonable rates and to maintain its property in good repair and working order, except when prevented from so doing by forces and conditions not reason- ably within the control of Grantee. Should Grantee fail or refuse to maintain its properties in good order and furnish efficient service at all times throughout the life of this grant, except only when prevented from so doing by forces and conditions not reasonably within the control of Grantee, or should the Grantee fail or refuse to furnish efficient -3- 142 service at reasonable rates, lawfully determined by the Grantor, throughout the life of this grant, excepting only during such periods as the Grantee shall in good faith and diligently contest the reasonableness of the rates in question, then it shall forfeit and pay to the Grantor the sum of Five Hundred ($500.00) Dollars for each day it shall so fail or refuse after reasonable notice thereof and hearing thereon by the Grantor. Section 7: In consideration of the rights and privileges herein granted, Grantee agrees to pay to the Grantor annually during the continuance of this franchise a sum of money equal to three percent (3 0,o) of the gross receipts for the preceding year received by the Grantee after the effective date of this franchise from the sale of gas to residential, small commercial, and large commercial customers within the corporate limits of the Grantor. Payments hereunder shall be calculated on the basis of gross receipts from the sale of gas delivered to residential, small commercial, and large commercial customers within the corporate limits of Grantor during the year next preceding that on account of which the payment is made and shall be payable on or before the first day of March of the year for which payment is made, beginning with the first day of March next following the effective date of this franchise and each and every year thereafter. Upon receipt of the above amount of money, the City Clerk shall deliver to the Grantee a receipt for such amount. Upon request of the Grantor, Grantee shall present to it any and all records, accounts and books for inspection relative to the gross receipts of Grantee within the cor- porate limits of the Grantor. -4- 143 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 use and occu- pancy 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 the Grantor ad valorem taxes or anywise interfere with collection thereof. Any special taxes, and /or special rentals or other charges accruing after the effective date of this franchise, under the terms of any pre- existing ordinance, or imposed upon Grantee by subsequent action of the Grantor shall, when paid to the Grantor, be applied as a credit to the amount owed to the Grantor under the terms of this franchise agree- ment. Section 8: It is specifically agreed and understood that Grantor may, at its option, have inserted by amendment hereto any greater percent of the gross receipts which Grantee agrees to pay to any other municipality within the Division of Grantee in which the Grantor is included and Grantee by its acceptance hereof agrees to such subsequent amendment. Section 9: Grantee, its successors and assigns, shall protect and hold Grantor harmless against all claims for damages to any person or property by reason of the construc- tion and maintenance of its natural gas distribution system, or in any way growing out of the granting of this franchise, either directly or indirectly, or by reason of any act, negligence, or nonfeasance of the contractors, agents, or employees of Grantee, its successors or assigns, and shall refund to Grantor all sums which it may be adjudged to pay -5- 8144 W 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 the Grantor harmless from and on account of all damages, costs, expenses, actions and causes of action that may accrue to or be brought by any person, persons, company or companies at any time hereafter by reason of the exercise of the rights and privileges hereby granted, or of the abuse thereof. Section 10: 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 11: In granting this franchise, it is under- stood that the lawful power vested by law in the Grantor to regulate certain public utilities within the City, and to regulate the local rates of said public utilities within the City within the limits of the constitution and laws, and to require all persons or corporations to discharge the duties and undertakings, for the performance of which this franchise was made, is reserved; and this grant is made subject to all lawful rights, powers and authorities, either of regulation or otherwise, reserved to the Grantor by its Charter or by the general laws of this State. Section 12: All ordinances and parts of ordinances in conflict herewith are hereby repealed; provided, however, that such repeal shall be only to the extent of such incon- sistency and in all other respects this ordinance shall be cumulative of other ordinances regulating and governing the subject matter covered by this ordinance. SM 8145 Section 13: This franchise shall take effect and continue and remain in effect for a period of forty (40) years from and after the date of this ordinance, provided Grantee files a written acceptance of this franchise with Grantor within one - hundred twenty (120) days after final passage of this ordinance. Section 14: 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 the 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. Section 15: Grantor may, at any time, declare a con- ditional forfeiture of this grant for a continuing violation by the Grantee of any of the substantial terms hereof. In such event, the Grantor shall give written notice, spec- ifying all grounds on which forfeiture is claimed, by registered mail, addressed and delivered to the Grantee, to the attention of its President, in Houston, Texas. The Grantee shall have sixty days after receipt of such notice within which to discontinue said alleged violation, or to file suit in a court of competent jurisdiction for an adju- dication or declaration of the rights of the parties with respect to forfeiture of the franchise. No forfeiture shall become effective until and unless (1) the Grantee shall have continued such violation or violations for more than sixty -7- 8146 days after receipt of such written notice from the Grantor without filing such a suit; or (2) the Grantee shall have continued such violation or violations for more than sixty days (or such longer period as the Court in its discretion shall allow) after the entry or affirmance in a court of last resort of a final judgment finding and establishing the existence of such violation or violations, and that such violations are sufficiently substantial to warrant for- feiture, and decreeing forfeiture as a consequence thereof. The Grantee shall not in any event be deemed to be in default of performance of any provisions of this grant, nor shall any forfeiture be invoked for violation or violations for failure to perform any provision hereunder when due to shortages of material, supplies and equipment beyond the control of the Grantee, or to fires, strikes, riots, floods, war or other casualties, or to governmental regulations, limitations or restrictions as to the use or availability of materials, supplies or equipment or as to the use of the service, or to unforeseen or unusual demands for service, or for any other cause not reasonably or practicably within the control of the Grantee. Section 16: No consolidation, sale, purchase, combi- nation or agreement affecting the sale or distribution of gas within the City limits of the City of Baytown can be had or entered into by the Grantee with any other gas utility company within the City limits of the City of Baytown, unless the same be expressly authorized and approved by the City Council of the City of Baytown. Section 17: The rights, privileges, and franchise herein granted to the Grantee shall extend to and include its successors and assigns, and the terms, conditions, GSM 8147 411 provisions, requirements and agreements in this ordinance contained, and each of them, shall be binding upon the successors and the assigns of the Grantee. Section 18 : The Grantee shall , within one-hundred twenty (120) days from the date of the final reading of this ordinance , file with the City Clerk a written acceptance of • this franchise in the following form: "To the Honorable Mayor and City Council of the City of Baytown : "The Grantee for itself, its successors and assigns, hereby accepts the attached ordinance and agrees to be bound f by all of its terms and provisions. 1 ENTEX, NC. . V3 IA "Dated the 2 L. day of , 1977. " INTRODUCED, READ, and PASSED on FIRST READING this 10th day of November , 1977. TOM GENTRY, M yor ATTEST: EILEEN P. HALL, City Clerk APPROVED: NEEL RI HAR SON, City Attorney - INTRODUCED, READ, and PASSED on SECOND READING this 22nd day of November , 1977 . TOM GENTRY , Mayor -9- N ATTEST: EIL�E1EN P. HALL, City Clerk APPROVED: 8148 NEEL R HARDSON, City Attorney INTRODUCED, READ, and PASSED on THIRD and FINAL READING this 20th day of December , 1977• TOM GENTRY, Mayor ATTEST: KAREN PETRU, Deputy City Clerk APPROVED: v ' 000, NEEL RIC ARDSON, City Attorney -10- .................. a m