2017-260ORDINANCE ♦ #`
♦ � � 1 � R 1 • � 1. •' � I • ♦ • R•
WHEREAS,HIM
ft
o Denton presently Road Widening &
Improvements project CCSJ: 0918-46-246, constituting the widening of a two lane rural road to a
four lane urban section from US Highway 380 (University Drive) to North of Edwards Road (the
"Project");
WHEREAS, Atmos Energy Corporation (Atmos) has an existing 8 -inch diameter gas pipe -
that crosses• Road at Projectplan Station182+60, in direct conflict with the City of
Denton's planned road improvements; and
WHEREAS, portion ♦ • conflicting gr pipeline - is situated within
the historic road right-of-way cross section of Mayhill Road, approximately 60 feet in width, and
as such being subject to compelled franchise rearrangement costrequirements; and
WHEREAS, a portion of Atmos' conflicting gas pipeline infrastructure is located in preex-
isting easements owned by Atmos, approximately 282 lineal feet overall, therefore necessitating
that a portion of • for a of • infrastructure be borne by of Denton,
on a prorated basis in respect to the overall costs for subject gas pipeline rearrangement; and
WHEREAS, the City• Atmos desire i .GasPipeline Rearrangement Agree-
ment (the ♦ to provide for the rearrangement of ♦ iconflicting
•
WHEREAS,•uncil finds the transactiono '• by Agreement
the best interest of the citizens of the City of Denton; NOW, THEREFORE;
SECTION 1. The recitals and findings contained in the preamble of this ordinance are
expressly incorporated herein.
SECTION 2. The City Manager, or his designee, is hereby authorized to execute the
Agreement, for and on behalf of the City of Denton, Texas, in substantially the form of the Agree -
being attached ! and incorporated hereinExhibit
SECTION 3. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the day of 2017.
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
AS TO LEGAL FORM:
AARON LEAL, INTERIM CITY ATTORNEY
BY:
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CHRIS WATTS, MAYOR
UTILITY REIMBURSEMENT AGREEMENT
Between
ATMOS ENERGY CORPORATION
And
THE CITY OF DENTON
This Agreement is entered into as of the . day of __ _ ,`, 2017, by and
between the CITY OF DENTON, a home rule city, (the "City"), and ATMOS ENERGY
CORPORATION, a Texas and Virginia corporation, whose address is 5430 Lyndon B
Johnson Freeway, Dallas, Texas 75240 (the "Utility" or "ATMOS"), acting herein by and
through their duly authorized officers (sometimes hereinafter collectively referred to as
the "Parties").
WHEREAS, the City of Denton is in the process of constructing the Mayhill Road
Widening & Improvement Project (the "Mayhill Project") in the City of Denton, Texas;
WHEREAS, construction of the Mayhill Project makes necessary the relocation,
adjustment, raising, lowering, rerouting, and/or changing the grade of and/or alteration of
the construction of utility lines, pipelines, conduits, properties and facilities, including the
adjustment and lowering of one (1) — 8" ATMOS gas pipeline traversing Mayhill Road at
Station 182+60 and the relocation of an ATMOS regulator station (collectively, the
"ATMOS Relocation");
WHEREAS, the cost of the ATMOS Relocation shall be shared by both the City
and ATMOS;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the City and ATMOS hereby agree:
1. The declarations contained in the preambles to this Agreement are material and
are hereby incorporated herein as a part of this Agreement as though they were fully set
forth in this paragraph 1.
2. Definitions. As used in this Agreement, the following terms shall have the
following meanings:
2.01. "Conflicting Facility" shall mean any existing Gas Facility owned
by the Utility and currently used and needed in carrying out its
business and meeting its obligations to its customers, and situated
so as to require Rearrangement, as determined by the Utility and
the City, in order to construct the City's Mayhill Project. If the
proposed construction of the City's Mayhill Project would prevent
or interfere with the Utility's use and necessary access to any Gas
Facility, such facility shall be deemed a Conflicting Facility.
2.02. "Design" shall mean that engineering and architectural work which
results in the production of maps, plans, drawings, estimates and
specifications which are necessary for the construction of the City's
Mayhill Project or for adjustment of Conflicting Facilities.
2.03. "Eligible Costs" shall mean all direct and indirect costs, including
materials and supplies, associated with any activity or work
performed by the Utility pursuant to this Agreement, determined as
provided herein.
2.K "Gas Facility" shall mean gas transmission and distribution
facilities, together with all necessary appurtenances owned by the
Utility.
2.05. "Written Notice" shall can a document, acceptable in form and
substance to the Utility and the City which the City will issue to
the Utility to authorize the performance of work and the supplying
of materials to or by the Utility under the terms of this Agreement.
2.06. "Rearrangement" shall mean the relocation, adjustment, raising,
lowering, rerouting and/or changing the grade of, and/or alteration
or replacement of the construction of or the reconstruction of a
Conflicting Facility or any portion thereof, whether permanent or
temporary, resulting from the construction or operation of the
City's Mayhill Project. "Rearrange" and "Rearranged" shall mean
the act of Rearrangement.
2.07. "Replacement Facility" shall can a permanent facility
constructed for the use of the Utility as a result of a
Rearrangement, that is not less than equivalent in all respects to the
Conflicting Facility requiring Rearrangement.
3.01. Construction of the City's Mayhill Project will necessitate the
Rearrangement
• certain Gas Facilities owned by the Utility
reflected in the detailed plans and specifications initialed by t
Parties and attached to this Agreement as Exhibit "A". I
3.02. By execution of this Agreement, the Utility agrees and consents to
the Rearrangement of Conflicting Facilities necessary to eliminate
conflict between City's Mayhill Project and such Conflicting
Facilities in accordance with the terms and conditions of this
Agreement,
11
3.03. The Utility and the City agree to exercise their reasonable and
good faith efforts, consistent with the Utility's legal obligations and
obligations to its customers and other public entities, to perform all
work authorized by this Agreement as soon as reasonably possible
to do so in a good and worlmanlike manner and make reasonable
efforts to coordinate with scheduled target dates in the City's
construction schedule, It is understood and agreed that the
scheduled target dates in the City's construction schedule and any
changes to the schedule, will be furnished to the Utility by Written
Notice in a timely manner which provides the Utility with
reasonably sufficient time to complete the work authorized by this
Agreement.
3.04. Notwithstanding any other provision of this Agreement, Utility
shall have no obligation to commence with the work authorized by
this Agreement until sixty (60) days following: (i) Utility's receipt
of Written Notice to proceed from City, and (ii) Utility's receipt of
satisfactory evidence from City that all required permits and
approvals from governmental authorities, if any, necessary for the
performance of the work authorized by this Agreement have been
obtained, and (iv) the resolution all legal and physical impediments
to the commencement of construction (e.g., the relocation of other
utilities),
3.05. Subject to the terms of Section 3.04 of this Agreement, the Utilit
shall proceed with the work described in Exhibit "A", or a specifi
portion described in the Written Notice, and shall furnish all labo
materials and supervision necessary, to carry out such work in an
efficient, timely and quality manner, and shall Rearrange that
portion of the Conflicting Facilities described in Section 2.01,
Exhibit "A" and as such Exhibit may from time to time be
amended and modified in writing by the Parties, and in the Writt
Notice. If the Utility is delayed or hindered in the progress of its
work by any cause beyond the control of the Utility, the City shal
appropriately extend all applicable dates within the construction
schedule for the number of days agreed in writing by negotiation
between the parties. I
3.06. The City recognizes that the Utility may not be adequately staffed
or equipped to perform all of the Rearrangements called for with
its own forces, and therefore authorizes the Utility to do the work
or a portion of it on a contract basis. The Utility may utilize
contractors with whom the utility has existing, continuing
contracts, The Utility shall select such contractors on the basis of
the lowest evaluated cost, which is a combination of price,
qualifications, quality, availability and reliability of the
contractor(s).
4.01. All work performed by the Utility under the terms of this
Agreement shall be initiated by Written Notice from the City.
4.02. State of Texas statutes and regulations, shall apply to, and are
incorporated by reference into this Agreement.
5. Reimbursements.
5.01. The issuance of a Written Notice shall obligate the City to pay the
Utility $220,078.10 as cost participation of all work, performed and
materials required to be acquired in order to carry out such
Rearrangement in accordance with the terms of this Agreement
and the Written Notice. The City of Denton shall reimburse their
participation amount of $220,078.10 in good funds, upon
completion of the Rearrangement work, no later than thirty (30)
days after submittal of an invoice to the City for payment.
6. Miscellaneous.
6.01. Notice. Any notice provided for in this Agreement to be given by
either party to the other, shall be in writing and shall be deemed
given when personally delivered or sent by facsimile, or three (3)
business days after being deposited in the United States Mail,
postage prepaid, certified, return receipt requested, or registered
and addressed as follows:
City of Denton, Capital Projects
Attention: Paul Williamson
Real Estate Manager
901 -A Texas Street
Denton, Texas 76209
Facsimile No: 940-349-8951
Telephone No.: 940-349-8921
City Attorney's Office
Attention: Trey Lansford
Deputy City Attorney
215 East McKinney Street
Denton, Texas 76201
6"W 6 6 o.: 940-382-7923
1!
To the Utility:
ATMOS ENERGY Corporation
Mid -Tex Division
MDTX-Dallas-LCll
Attention: Marc E. Rothbauer,
Director of Engineering
5420 LBJ Freeway, Suite 1800
Dallas, Texas 75240
Facsimile No.: 214-206-2132
Telephone No. - 214-2062912
1, er parLy, may criang777 Ls a I'C;SS Of latS111111C IfurIT tur-RUITU-C
by giving the other party written notice of same.
6.02. Ownership. All Replacement Facilities constructed pursuant to ths
Agreement shall be the property of the Utility. I
6.03. Assignment. This Agreement may not be assigned or transferred
by either party without the prior written consent of the other party,
EXCEPT, HOWEVER, that it may be freely assigned without
further consent among any companies affiliated with Utility as of
the date of this Agreement.
6.04, Binding Agreement: Parties Bound. This Agreement has been duty
executed and delivered by both Parties and constitutes a legal,
valid and binding obligation of the Parties, their successors and
assigns.
6.05. Amendment. This Agreement may not be amended except in a
written instrument specifically referring to this Agreement and
signed by the Parties hereto and dated after the date of this
Agreement is signed.
6.06. Applicable Law Venue, This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas. This
Agreement is to be performed in whole or in part in Denton
County, Texas. Sole venue for any proceeding to construe or
enforce any of the terms or conditions of this Agreement, or
seeking damages for its breach shall be Denton County, Texas.
6.07. Number and Gender. Words of any gender used in'this Agreement
shall be held and construed to include any other gender and words
in the singular shall include the plural and vice versa, unless the
context clearlyrequires otherwise®
6.08. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same instrument.
6.09. Sole Agreement. This Agreement constitutes the sole agreement
Between the Parties respecting the subject matter and supersedes
any prior understandings or written or oral agreements.
6.10. Legal Construction. In case one or more of the provisions
contained in this Agreement shall for any reason be held invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions in this
document and this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein.
ME=
0
EXECUTED by the Parties on the dates indicated with their signatures, but
effective as of the date specified at the beginning of this Agreement:
The UTILITY: ATMOS ENERGY
CORPORATION,
a Texas and Virginia coj orz ion
Mar 1 „ Rothbauer,
1)ii•e or of Estlgiiieei-it .g
Date:
The CITY: CITY OF DENTON, TEXAS
JJ�
Y ..........
—
Todd Hileman,
City mlifutgelt'
Date:.31 k
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
AARON LEAL, INTERIM CITY ATTORNEY
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ORDINANCE NO, 20t-/-200_
AN ORDINANCE APPROVING A UTILITY REIMBURSEMENT AGREEMENT BETWEEN
THE CITY OF DENTON AND ATMOS ENERGY CORPORATION; PROVIDING FOR THE
PAYMENT OF TWO HUNDRED TWENTY THOUSAND, SEVENTY EIGHT DOLLARS
AND 10/100 ($220,078.10) TO ATMOS ENERGY CORPORATION FOR THE RELOCATION
OF ITS "F-8 (2ND)" GAS PIPELINE LOCATED IN THE 1000 BLOCK OF SOUTH MAYHILL
ROAD IN CONJUNCTION WITH THE CURRENT MAYHILL WIDENING AND IMPROVE-
MENTS PROJECT; AUTHORIZING THE CITY MANAGER TO EXECUTE THE AGREE-
MENT; AND PROVIDING AN EFFECTIVE DATE,
WHEREAS, the City of Denton is presently undertaking the Mayhill Road Widening &
Improvements project CCSJ: 0918-46-246, constituting the widening of a two lane rural road to a
four lane urban section from US Highway 380 (University Drive) to North of Edwards Road (the
"Project"); and
WHEREAS, Atmos Energy Corporation (Atmos) has an existing 8 -inch diameter gas pipe-
line that crosses Mayhill Road at Project plan Station 182+60, in direct conflict with the City of
Denton's planned road improvements; and
WHEREAS, a portion of Atmos' conflicting gas pipeline infrastructure is situated within
the historic road right-of-way cross section of Mayhill Road, approximately 60 feet in width, and
as such being subject to compelled franchise rearrangement cost requirements; and
WHEREAS, a portion of Atmos' conflicting gas pipeline infrastructure is located in preex-
isting easements owned by Atmos, approximately 282 lineal feet overall, therefore necessitating
that a portion of the costs for rearrangement of said infrastructure be borne by the City of Denton,
on a prorated basis in respect to the overall costs for subject gas pipeline rearrangement; and
WHEREAS, the City and Atmos desire the enter into a Gas Pipeline Rearrangement Agree-
ment (the "Agreement") to provide for the rearrangement of Atmos' conflicting gas pipeline in-
frastructure; and
WHEREAS, the City Council finds the transaction contemplated by the Agreement is in
the best interest of the citizens of the City of Denton; NOW, THEREFORE;
THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY ORDAINS:
SECTION 1_. The recitals and findings contained in the preamble of this ordinance are
expressly incorporated herein.
S1 ItN y. The City Manager, or his designee, is hereby authorized to execute the
Agreement, for and on behalf of the City of Denton, Texas, in substantially the form of the Agree-
ment being attached hereto and incorporated herein as Exhibit "A".
SECTION 3. This ordinance shall become effective immediately upon its passage and
approval. �....�......�..�
PASSED AND APPROVED this the l day of '
. . ..... . 2017.
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY: C."
APPROVED AS TO LEGAL FORM:
AARON LEAL, INTERIM CITY ATTORNEY
BY: -
V,
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CliRls WATTS, MAYOR