AN ORDINANCE GRANTING A FRANCHISE BY THE CITY OF RICH HILL, COUNTY OF BATES, MISSOURI, TO ATMOS ENERGY CORPORATION, ITS SUCCESSORS AND ASSIGNS, THE RIGHT TO FURNISH, SELL AND DISTRIBUTE GAS TO THE CITY AND TO ALL PERSONS, BUSINESSES AND INDUSTRIES WITHIN THE CITY AND THE RIGHT TO ACQUIRE, CONSTRUCT, INSTALL, LOCATE, MAINTAIN, OPERATE AND EXTEND INTO, WITHIN AND THROUGH SAID CITY ALL FACILITIES REASONABLY NECESSARY TO FURNISH, SELL AND DISTRIBUTE GAS TO THE CITY AND TO ALL PERSONS, BUSINESSES AND INDUSTRIES WITHIN THE CITY AND IN THE TERRITORY ADJACENT THERETO AND THE RIGHT TO MAKE REASONABLE USE OF ALL STREETS AND OTHER PUBLIC PLACES AS MAY BE NECESSARY, AND FIXING THE TERMS AND CONDITIONS THEREOF.
BE IT ORDAINED BY THE BOARD OF ALDERMAN OF THE CITY OF RICH HILL, BATES COUNTY, MISSOURI as follows:
For the purpose of this franchise, the following words and phrases shall have the meaning given in this Article. When no inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number. The word “shall” is mandatory and “may” is permissive. Words not defined in this Article shall be given their common and ordinary meaning.
1.1 “Council” or “City Council” refers to and is the governing body of the City ofRich Hill.
1.2 “Company” refers to and is Atmos Energy Corporation and its successors and assigns.
1.3 “Distribution Facilities” refer to and are only those facilities reasonably necessary to provide gas within the City.
1.4 “Facilities” refer to and are all facilities reasonably necessary to provide gas into, within and through the City and include plants, works, systems, lines, equipment, pipes, mains, underground links, gas compressors and meters.
1.5 “Gas” or “Natural Gas” refers to and is such gaseous fuels as natural, artificial, synthetic, liquefied natural, liquefied petroleum, manufactured, or any mixture thereof.
1.6 “MissouriPublic Service Commission” and/or “PSC” refers to and is the state regulatory commission of the State ofMissourior other authority succeeding to the regulatory powers of the PSC.
1.7 “Revenues” refer to and are those amounts of money which the Company receives from its customers within the City for the sale of gas under rates, temporary or permanent, authorized by the PSC and represents amounts billed under such rates as adjusted for refunds, the net write-off of un-collectible accounts, corrections or other regulatory adjustments.
1.8 “Streets and Other Public Places” refer to and are streets, alleys, viaducts, bridges, roads, lanes, easements, public ways and other public places in said City.
1.9 “City” refers to and is the City ofRich Hill,Bates County,Missouri, and includes the territory as currently in or may in the future be included within the boundaries of the City ofRich Hill.
Grant of Franchise
2.1 Grant of Franchise – The City hereby grants to the Company, for the period specified and subject to the conditions, terms and provisions contained in this Ordinance, the right to furnish, sell and distribute gas to the City and to all persons, businesses and industries within the City; the right to acquire, construct, install, locate, maintain, operate and extend into, within and through the City all facilities reasonably necessary to provide gas to the City and to all persons, businesses and industries within the City and in the territory adjacent thereto; and the right to make reasonable use of all streets and other public places as may be necessary to carry out the terms of the Ordinance.
2.2 Terms of Franchise – The term of this franchise shall be for ten (10) years, beginningJanuary 1, 2007and expiringDecember 31, 2017.
2.3 Term of Franchise. The term of this franchise shall be for as set forth in Section 2.2 of this Article II from and after its passage and approval; provided, this franchise and all rights and privileges herein provided shall be extended for two (2) successive periods of five (5) years each unless the City by notice given to the Company and by Ordinance duly enacted and approved at least six (6) months before the end of such term of ten (10) years, or before the end of the first extended term of five (5) years, as the case may be, shall declare such termination effective.
2.4 Effective Date and Acceptance. This Ordinance shall become effective upon its final passage and approval by the City, in accordance with applicable laws and regulations, and upon acceptance by the Company by written instrument within sixty (60) days of passage by the governing body, and filed with the Clerk of the City. If the Company does not, within sixty (60) days following passage of this Ordinance, express in writing its objections to any terms or provisions contained therein, or reject this Ordinance in its entirety, the Company shall be deemed to have accepted this Ordinance and all of its terms and conditions.
3.1 Franchise Fee – In consideration for the grant of this franchise, the Company shall collect and remit to the City a sum equal to two percent (2%) of the revenues derived annually from the sale of gas within the City, excluding the amount received from the City itself for gas service furnished it, which fee the Company and the City agree is adequate compensation. Annual franchise fee payments shall be made on or before March 1 for the preceding calendar year ending December 31. Payments at the beginning and end of the franchise shall be prorated.
3.2 Franchise Fee Payment in Lieu of Other Fees – Payment of the franchise fee by the Company is accepted by the City in lieu of any occupancy tax, license tax, permit charge, inspection fee or similar tax, assessment or excise upon the pipes, mains, meters or other personal property of the Company or on the privilege of doing business or in connection with the physical operation thereof, but does not exempt the Company from any lawful taxation upon its real property or any other tax not related to the franchise or the physical operation thereof.
Conduct of Business
4.1 Conduct of Business – The Company may establish, from time to time, such rules, regulations, terms and conditions governing the conduct of its business as shall be reasonably necessary to enable the Company to exercise its rights and perform its obligations under this franchise; provided, however, that such rules, regulations, terms and conditions shall not be in conflict with the laws of the State of Missouri.
4.2 Tariffs on File – The Company shall keep on file in its nearest office copies of all its tariffs currently in effect and on file with the PSC. Said tariffs shall be available for inspection by the public.
4.3 Compliance with PSC Regulations – The Company shall comply with all rules and regulations adopted by the PSC.
4.4 Compliance with Company Tariffs – The Company shall furnish gas within the City to the City and to all persons, businesses and industries within the City at the rates and under the terms and conditions set forth in its tariffs on file with the PSC.
4.5 Applicability of Company Tariffs – The City and the Company recognize that the lawful provisions of the Company’s tariffs on file and in effect with the PSC are controlling over any inconsistent provision in this franchise dealing with the same subject matter.
Construction, Installation, & Operation of Company Facilities
5.1 Location of Facilities – Company facilities shall not interfere with the City’s water mains, sewer mains or other municipal use of streets and other public places. Company facilities shall be located so as to cause minimum interference with public use of streets and other public places and shall be maintained in good repair and condition. The City Council acknowledges that, to its knowledge, as of the date of this Ordinance, the Company and its facilities are in compliance with the provisions of this Section 5.1.
5.2 Excavation and Construction – All construction, excavation, maintenance and repair work done by the Company shall be done in a timely and expeditious manner, which minimizes the inconvenience to the public and individuals. All such construction, excavation, maintenance and repair work done by the Company shall comply with all applicable state and federal codes. All public and private property whose use conforms to restrictions in easements disturbed by Company construction or excavation activities shall be restored as soon as practicable by the Company at its expense to substantially its former condition. The Company shall comply with the City’s requests for reasonable and prompt action to remedy all damage to private property adjacent to streets or dedicated easements where the Company is performing construction, excavation, maintenance or repair work. The City reserves the right to restore property and remedy damages caused by Company activities at the expense of the Company in the event the Company fails to perform such work within a reasonable time after Notice from the City.
5.3 Relocation of Company Facilities – If at any time the City requests the Company to relocate any distribution gas main or service connection installed or maintained in streets or other public places in order to permit the City to change street grades, pavements, sewers, water mains or other City works, such relocation shall be made by the Company at its expense. The Company is not obligated hereunder to relocate any facilities at its expense which were installed in private easements obtained by the Company, the underlying fee of which was, at some point subsequent to installation, transferred to the City. Following relocation, all property shall be restored to substantially its former condition by the Company at its expense.
5.4 Service to New Areas – If during the term of this franchise the boundaries of the City are expanded, the Company shall extend service to the newly incorporated areas. Service to annexed areas shall be in accordance with the provisions of Company’s tariffs then in effect on file with the PSC. The City will promptly notify in writing of any geographic areas annexed by the City during the term hereof (“Annexation Notice”). Any such Annexation Notice shall be sent to Company 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 Company may reasonably require in order to ascertain whether there exist any customers of Company receiving natural gas service in said annexed area. To the extent there are such Company customers therein, then the gross revenues of Company derived 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 Company’s billing cycle immediately following Company’s receipt of the Annexation Notice. The failure by the City to advise the Company in writing through proper Annexation Notice of any geographic areas which are annexed by the City shall relieve Company from any obligation to remit any franchise fees to City based upon gross revenues derived by Company from the sale and distribution of natural gas to customers within the annexed area until City delivers an Annexation Notice to Company in accordance with the terms hereof.
5.5 Restoration of Service – In the event the Company’s gas system, or any part thereof, is partially or wholly destroyed or incapacitated, the Company shall use due diligence to restore its system to satisfactory service within the shortest practicable time.
5.6 Supply and Quality of Service – The Company shall make available an adequate supply of gas to provide service in the City. The Company’s facilities shall be of sufficient quality, durability, and redundancy to provide adequate and efficient gas service to the City.
5.7 Safety Regulations by the City – The City reserves the right to adopt, from time to time, reasonable regulations in the exercise of its police power which are necessary to ensure the health, safety and welfare of the public, provided that such regulations are not destructive of the rights granted herein. The Company agrees to comply with all such regulations in the construction, maintenance and operation of its facilities and in the provision of gas within the City.
5.8 Inspection, Audit and Quality Control – The City shall have the right to inspect, at all reasonable times, any portion of the Company’s system used to serve the City and its residents. The City also shall have the right to inspect and conduct an audit of Company records relevant to compliance with any terms of this Ordinance at all reasonable times. The Company agrees to cooperate with the City in conducting the inspection and/or audit and to correct any discrepancies affecting the City’s interest in a prompt and efficient manner.
Assignment; Saving Clause
6.1 Assignment – The Company shall have the right and power to assign to any other person or persons any and all rights conferred upon it by the terms of this Ordinance, after it has installed, erected and built a gas distribution system; provided that a mortgage or trust deed or judicial sales made thereunder or under tax sales or the transfer of this Ordinance to a subsidiary with the written consent of the city, which shall be unreasonably withheld, shall not be deemed an assignment within the meaning of this Section. Any assignee of the rights of the Company herein, by accepting such assignment, shall thereby become subject to all of the terms, conditions, and provisions of this Ordinance; and in the event of any assignment by the Company of the rights hereby conferred upon it, such assignment shall be in writing and a duly authenticated copy thereof shall be filed in the office of the Clerk of the City..
6.2 Saving Clause – If any portion of this franchise Ordinance is declared illegal or void by a court of competent jurisdiction, the remainder of the Ordinance shall survive and not be affected thereby.
7.1 Force Majeure. It shall not be a breach or default under this Ordinance if either party fails to perform its obligations hereunder due to Force Majeure. Force Majeure shall include, but not be limited to, the following:
1) physical events such as landslides, lighting, earthquakes, fires, freezing, storms, floods, washouts, explosions, breakage or accident or necessity of repairs to machinery, equipment or distribution or transmission lines;
2) acts of others such as strikes, work-force stoppages, riots, sabotage, terrorism, insurrections or wars;
3) governmental actions such as necessity for compliance with any court order, law, statute, Ordinance, executive order, or regulations promulgated by a governmental authority having jurisdiction; and
4) any other causes, whether of the kind herein enumerated or otherwise not reasonably within the control of the affected party to prevent or overcome.
Each party shall make reasonable efforts to avoid Force Majeure and to resolve such event as promptly as reasonably possible once it occurs in order to resume performance; provided, however, that this provision shall not obligate a party to settle any labor strike.
7.2 Indemnity and Hold Harmless. The Company, agrees to indemnity and hold harmless the City from and against all claims, demands, losses and expenses including reasonable attorney fees and litigation expenses arising directly out of the negligence of the Company, its employees or agents, in the constructing, operating and maintaining of distribution and transmission facilities or appliances of the Company; provided, however, that the Company need not save harmless the City, and the City shall save and hold the Company harmless, from claims, demands, losses and expenses arising out of the negligence of the City, its employees or agents.
7.3 Repeal of Conflicting Ordinances. All Ordinances or parts of Ordinances in conflict herewith are hereby repealed.
INTRODUCED, READ AND ORDERED PUBLISHED THE 10TH DAY OF OCTOBER 2006.
PASSED, ADOPTED AND APPROVED THIS 10TH DAY OF OCTOBER 2006.
THE CITY OFRICH HILL,MISSOURI
Tammy Williams, Mayor
Rose Entrikin, City Clerk
Ayes: Humble, Turner, Miller, Wills