An Ordinance authorizing
a franchise to northwest
Alabama gas district and levying a
privilege and/or license fee therefore
WHEREAS, the Town of Bear Creek (hereinafter referred to as the "Town") is empowered to enact ordinances in furtherance of its police powers, its duty to protect and to promote the general health and welfare of its citizens and is specifically empowered to regulate the use of the streets for the installation, maintenance, and operation of a gas distribution and/or gas transmission system, and all appurtenances thereto, and generally to control and regulate the use of the streets for any and all purposes.
WHEREAS, the governing body of the Town does hereby find and declare that public convenience and necessity requires the granting of a franchise to use the streets for the installation, maintenance, and operation of a gas distribution system and/or gas transmission system and any and all related
WHEREAS, the governing body of the Town does hereby find and declare that the privilege to use the streets, avenues, alleys, or public places of the Town for the construction or operation of any public utility or private enterprise is a valuable privilege that should not be awarded without the levy of a privilege or license fee upon said privilege.
NOW THEREFORE, for the foregoing purposes, and other legitimate purposes, BE IT ORDAINED BY THE TOWN OF BEAR CREEK, ALABAMA, THROUGH ITS DULY ELECTED COUNCIL, as follows:
ARTICLE I. Franchise. In consideration of the benefits to accrue to the Town and based upon a finding of public convenience and necessity, the Northwest Alabama Gas District (the "District"), its successors, and assigns, is hereby given, granted, invested with the right, authority, privilege, consent and franchise to use the streets, avenues, and public ways of the Town for the purpose of engaging in the business of operating a gas distribution and/or gas transmission system including the right and privilege to acquire, construct, erect, operate and maintain, in, upon, along, across, above, over and under the streets, alleys, public ways and public places now laid out or dedicated and all extensions thereof, and additions thereto, in the Town, pipes, mains, and other conductors and fixtures and related
necessary for the maintenance and operation of the District's business in the Town.
ARTICLE II. Privilege or License Fee. During the Term of this Agreement, the District shall pay to the Town a fee equal to 3% of the Gross Revenues derived from the gas services provided within the municipal boundaries of the Town. For all Gross Revenues derived from gas services provided within the police jurisdiction of the Town but outside of the corporate limits thereof, the District shall pay to the Town a fee equal to one half the amount charged and collected as a privilege and/or license fee for gas services provided within the municipal boundaries of the Town. This fee shall be paid quarterly and paid to the Town within 45 days after the end of the preceding quarter for which payment is made.
ARTICLE III. Gross Revenues. The term Gross Revenues shall include the following: the gross receipts of the business done by the District in the Town and its police jurisdiction for the preceding year; and, for the first year's business when an existing gas utility is taken over, the amount of the privilege or license fee levied hereunder shall be computed on the basis of the gross receipts of the prior operator plus the gross receipts of the District.
ARTICLE IV. Non-exclusivity. The grant of the right, privilege and franchise herein to the District, to use and otherwise occupy the streets, alleys, and public ways and places for the purposes herein set forth shall be non exclusive and the Town reserves the right to grant other franchises or rights in said streets, alleys, public ways or public places, to any other person, firm or corporation at any time. This franchise is not exclusive.
ARTICLE V. Duration/Term of Franchise. The duration and term of this franchise and all rights and authorities herein granted shall be for a maximum period of thirty (30) years from the date of the final adoption of this ordinance. This franchise may be terminated sooner in accordance with the provisions hereof.
This franchise and the rights, privileges and authority hereby granted shall take effect as of the first day of the first month next following its final enactment and upon publication as herein stated. The District shall, within ten (10) days after the effective date, file with the Town Clerk its unconditional acceptance of this franchise and promise to comply with and abide by all the provisions, terms and conditions. Such acceptance of promise shall be in writing duly executed and sworn to by or on behalf of the grantee before a notary public or other officer authorized by law to administer oaths. Should the District fail to comply with the aforesaid, it shall acquire no rights, privileges or authority under this franchise whatever.
ARTICLE VI. Compliance with Applicable Laws. The grantee shall, at all times during the term of this franchise, be subject to and comply with all applicable laws, ordinances and regulations, including the lawful exercise of the police power by the Town.
ARTICLE VII. Service Area. This franchise relates to the present territorial corporate limits of the Town of Bear Creek and to any area henceforth added thereto during the term of this franchise and its police jurisdiction.
ARTICLE VIII. Police Power. It is expressly understood that, in granting this franchise the Town of Bear Creek does not waive or surrender any of its rights or police powers in exercising governmental control. The grantee shall comply with all reasonable regulations and ordinances duly adopted pursuant to the police powers and governmental authority of the governing body of the Town and the Town, by entering into this franchise, does not subordinate any of its powers of governmental authority to the franchise herein being granted. Further, there is hereby reserved to the Town every right and power which is required to be reserved by the provision of this ordinance or by any law of the Town, and the District, by its acceptance of any franchise, agrees to be bound thereby and to comply with any action or requirements of the Town in its exercise of such rights or powers heretofore or hereinafter enacted or established.
Use of Streets.
(a) All transmission and distribution pipelines, mains structures, and equipment installed by the grantee within the Town shall be so located as to cause minimum interference with the rights and reasonable convenience of property owners who adjoin any of the said streets.
(b) In case of a disturbance of any street, easement or paved area or other property, the grantee shall, at its own cost and expense and in a manner approved by the Town, replace and restore such street, easement or paved area or other property in as good a condition as before the work involved in such a disturbance was done.
(c) If at any time during the period of a franchise the Town shall lawfully elect to alter or change the grade of any street, the grantee upon reasonable notice by the Town, shall remove, relay and relocate its pipes, mains, meters and appurtenances thereto and other fixtures at its own expense.
(d) Any pipes or other fixtures placed in or adjacent to any street by the grantee shall be placed in such manner as to comply with all requirements of the Town.
ARTICLE X. Non-Assignment. The rights and privileges herein granted to the District shall not be assigned, sublet or transferred without the prior written consent of the Town Council, such consent being duly adopted by resolution as spread upon the minutes of the Town Council.
Rights. The Town shall have the right to inspect the books, records, maps, plans, income tax returns and other materials of the grantee at any time during normal business hours.
ARTICLE XII. Severability. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions hereof.
ARTICLE XIII. Publication. This Ordinance shall be published once in the Northwest Alabamian which is a newspaper of general circulation published in the Town, and shall be published at the expense of the District.
ADOPTED and ORDAINED this the 21st day of June, 2023.
I, Kay Wiginton, Town Clerk of the Town of Bear Creek, certify that the foregoing ordinance No. 6-2023 is a true and correct copy of that certain Ordinance adopted by the Town of Bear Creek, on this the 21st day of June, 2023.
WITNESS, my hand this 21st day of June, 2023