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HomeMy WebLinkAboutORD 99-60 - TXU Lone Star GasAl r ! . • • r r - - • • � ! i l r -• r i- a r a i- a • • 1 A r a - r.� a ar � � ♦' 1:392*011MANYTIM WHEREAS, ORDINANCE NO. 78-1 establishing a franchise agreement between the City of Georgetown, Texas, and Lone Star Gas Company was passed and approved on January 10, 1978; WHEREAS, said franchise agreement set a term of twenty (20) years, which term expired on January 10, 1998; and WHEREAS, ORDINANCE NO. 9M6 extended the term for a period of one (1) year, which expired on January 10, 1999 and Ordinance No. 99-04 extended the term for an additional period of one (1) year, which shall expire on January 10, 2000; and WHEREAS, it is the City's desire to grant to Lone Star Gas, now known as TXU Lone Star Gas, a division of TXU Gas Company, a Texas corporation, a new franchise to construct, maintain, and operate pipelines and equipment in the City of Georgetown, Williamson County, Texas, for the transporting, delivery, sale and distribution of gas in, out of, and through the City of Georgetown for a term of ten (10) years; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF GEORGETOWN, TEXAS, THAT: SECTION 1. The facts and recitations contained in the preamble of this ordinance are hereby found and declared to be true and correct, and are incorporated by reference herein and expressly made a part hereof, as if copied verbatim. The City Council hereby finds that this ordinance implements Utilities and Energy Policy 14.6 of the Century Plan - Policy Plan Element, which states: "Franchised utilities provide adequate services for all citizens.'; and further finds that the enactment of this ordinance is not inconsistent or in conflict with any other Century Plan Policies, as required by Section 2.03 of the TXU Lone Star Gas Franchise Agreement Ordinance No. Page 1 of 7 Administrative Chapter of the Policy Plan, SECTION 2, Chapter 14.04 of the Code of Ordinances of the City of Georgetown, Texas is hereby replaced by the following: TXU LONE STAR GAS, A DIVISION OF TXU GAS COMPANY SECTION 1. The City of Georgetown, Texas, hereinafter called "City," hereby grants to TXU Lone Star Gas, a Division of TXU Gas Company, hereinafter called "Company," its successors and assigns, consent to use and occupy the present and future streets, alleys, highways, public places, public thoroughfares, and grounds of City, hereinafter referred to as "Public Rights -of -Way," for the purpose of laying, maintaining, constructing, protecting, operating, and replacing therein and thereon pipelines and all other appurtenant equipment to deliver, transport, and distribute gas in, out of, and through City for persons, firms, and corporations, including all the general public, and to sell gas to persons, firms, and corporations, including all the general public, within the City corporate limits, as such limits may be amended from time to time during the term of this ordinance, said consent being granted for a term beginning January 13, 2000, and ending December 31, 2009, provided that said term shall be automatically renewed for an additional five-year period ending December 31, 2014 unless written notice is given to the Company by the City or to the City by the Company 120 days before the expiration of the initial term setting forth the desire of the giver of the notice to reconsider this franchise, in which event this franchise shall be renegotiated. If during the term of this franchise, legislation is enacted which requires the deregulation of the gas industry and/or the "unbundling " of gas services, this franchise must be renegotiated within six months of the passage of the new law. If the parties are unable to renegotiate the agreement within the six-month period, this agreement will terminate upon 30 -days written notice by either party. At any time during the term of this franchise, either party may request renegotiation of any item herein. Within a reasonable time following such request, the parties will meet to renegotiate in good faith the suggested amendments to the franchise. SECTION 2. Company shall lay, maintain, construct, operate, and replace its pipes, mains, laterals, and other equipment to minimize interference with traffic and shall promptly clean up and restore to approximate original condition. When Company makes, or causes to be made, excavations, or places, or causes to be placed, obstructions in any Public Rights -of --Way, Company shall place, erect, and maintain barriers and lights to identify the location of such excavations or obstructions. In determining the location of Company's pipeline within City, Company shall work with the City to minimize interference with then existing underground structures of City or other utility franchisees. Likewise, in determining the location of the facilities of the City and other utility franchisees within City, City shall minimize interference with then existing facilities of Company and shall require other utility franchisees to minimize interference with existing facilities of Company. In the event of a conflict between the location of the facilities of Company and the location of the facilities of City or other utility franchisees within Public Rights -of -Way that cannot otherwise be TXU Lone Star Gas Franchise Agreement Ordinance No. Page 2 of 7 resolved, City or an authorized agent of City shall resolve the conflict and determine the location of the respective facilities. Company shall not be required to obtain street cutting, street excavation or other special permits related to excavations in Public Rights -of -Way in connection with Company's operations in Public Rights -of -Way. For non -emergency activities, however, Company shall coordinate its activities with City through a designated individual or individuals. The City shall contact the designated individual or individuals to report any restorations of the Public Rights -of -Way that fail to meet with the City's satisfaction and the Company shall endeavor to make the restoration meet with City's satisfaction. Work done in the Public Right -of -Way shall be executed in a manner to reasonably minimize the time of construction and disruption of traffic and the general public. Company shall restore to its approximate original condition all Public Rights -of --Way disturbed during the construction or repair of the Company's facilities, and Company shall guarantee its restoration work for a period of one year following the completion of such restoration work. When the Company is required by City to remove or relocate its mains, laterals, and other facilities to accommodate construction of streets and alleys by City, and Company is eligible under federal, state, county, local or other programs for reimbursement of costs and expenses incurred by Company as a result of such removal or relocation, and such reimbursement is required to be handled through City, Company costs and expenses shall be included in any application by City for reimbursement, if Company submits its cost and expense documentation to City prior to the filing of the application. City shall provide reasonable notice to Company of the deadline for Company to submit documentation of the costs and expenses of such relocation to City. If the Company is required by City to remove or relocate its mains, laterals, or other facilities for any reason other than the construction of streets and alleys by City, Company shall be entitled to reimbursement from City or others of the cost and expense of such removal or relocation. Nothing herein shall be construed to prohibit, alter or modify in any way the right of the Company to seek or recover a surcharge without filing a rate case for such relocation costs pursuant to Section 104.112, et al, of the Texas Utilities Code. In the event Company is denied full reimbursement from any federal, state, county or other programs, then Company expressly retains the rights granted pursuant to Section 104.112, et al, of the Texas Utilities Code. If City abandons any Public Right -of -Way in which Company has facilities, such abandonment shall be conditioned on Company's right to maintain its use of the former Public Right -of -Way and on the obligation of the party to whom the Public Right -of -Way is abandoned reimbursing Company for all removal or relocation expenses if Company agrees to the removal or relocation of its facilities following abandonment of the Public Right -of -Way. If the party to whom the Public Right -of -Way is abandoned requests the Company to remove or relocate its facilities and Company agrees to such removal or relocation, such removal or relocation shall be done within a reasonable time at the expense of the party requesting the removal or relocation. If relocation cannot practically be made to another Public Right -of -Way, the expense of any right-of-way acquisition shall be considered a relocation expense to be reimbursed by the party requesting the relocation. SECTION 3. In the event of injury to any person or damage to any property by TXU Lone Star Gas Franchise Agreement Ordinance No. 47,7440 Page 3 of 7 reason of Company's construction, operation, maintenance, or replacement of Company's pipeline system within Public Rights -of -Way, Company shall indemnify and keep harmless City from any and all liability in connection therewith. SECTION 4. In addition to the rates charged for gas supplied, Company may make and enforce reasonable charges, rules and regulations for service rendered in the conduct of its business, including a charge for services rendered in the inauguration of natural gas service. Company may require, before furnishing service, the execution of a contract for such service. Company shall have the right to contract with each customer with reference to the installation of, and payment for, any and all of the gas piping from the connection thereof with the Company's main in the Public Rights -of -Way to and throughout the customer's premises. Company shall own, operate and maintain all service lines, which are defined as the supply lines extending from the Company's main to the customer's meter where gas is measured by Company. The customer shall own, operate, and maintain all yard lines and house piping. Yard lines are defined as the supply lines extending from the point of connection with Company's customer meter to the point of connection with customer's house piping. SECTION 5. Company shall be required to extend distribution mains in any Public Rights -of -Way up to one hundred feet (100') for any one residential customer only if such customer, at a minimum, uses gas for unsupplemented space heating and water heating. Company shall not be required to extend transmission mains in any Public Rights -of -Way within City or to make a tap on any transmission main within City unless Company agrees to such extension by a written agreement between Company and a customer. SECTION 6. Company shall be entitled to require from each and every customer of gas, before gas service is commenced or reinstated, a deposit in an amount calculated pursuant to the Company's Quality of Service Rules as may be in effect during the term of this franchise. Said deposit shall be retained and refunded in accordance with such Quality of Service Rules and shall bear interest, as provided in Section 183 of the Utilities Code as it may be amended from time to time. Company shall be entitled to apply said deposit, with accrued interest, to any indebtedness owed Company by the customer making the deposit. SECTION 7. The rights, privileges, and franchises granted by this ordinance are not to be considered exclusive, and City hereby expressly reserves the right to grant, at any time, like privileges, rights, and franchises as it may see fit to any other person or corporation for the purpose of transporting, delivering, distributing, or selling gas to and for City and the inhabitants thereof. Provided, however, in the event City grants franchise conditions to another gas franchisee that are more favorable to such gas franchisee than the terms of this franchise are to Company, City shall approve amendments to this franchise that provide Company with the same favorable terms to be effective on the effective date of the franchise granted to such other gas franchisee. SECTION 8. Company, its successors and assigns, agrees to pay and City agrees to accept, on or before the 1st day of March, 2000, a sum of money which shall be equivalent to two percent (2%) of the gross revenue received by Company from the sale TXU Lone Star Gas Franchise Agreement Ordinance No. Page 4 of 7 of gas to its residential and commercial customers within the corporate limits of said City during the preceding calendar year. And on or before the first day of March, 2001, and on or before the first day of each succeeding March 1st during the life of this franchise, the last payment being made on the 1 st day of March 2010 (or on the 1 st day of March, 2015, in the event the five-year extension period is utilized), a sum of money that shall be equivalent to three percent (3 %) of the following: (1) the gross revenues received by Company from the sale of gas to its residential, commercial and industrial customers within the corporate limits of said City during the preceding calendar year, (2) the gross revenues received by Company for the transportation of third -party gas through Company's local distribution system within the City to customers within the corporate limits of the City during the preceding calendar year, and (3) the total value of third -party gas transported by Company through its local distribution system within the City to customers within the corporate limits of the City during the preceding calendar year. It is expressly agreed that gross revenues exclude (1) revenues derived from sales to governmental accounts; (2) taxes imposed by law on customers that the Company is obligated to collect and which the Company passes on, in full, to the applicable tax authority or authorities; (3) any investment income earned by the Company; (4) other revenue of the Company derived from the lawful charges to connect gas within the City; to disconnect gas service within the City; to handle returned checks from customers within the City and such other charges as may, from time to time, be authorized in the rates and charges on file with the City. Such annual payment shall be for the rights and privileges herein granted to Company, including expressly, without limitation, the right to use the Public Rights -of -Way of City. The initial payment for the rights and privileges herein provided shall be for the period March 1, 2000, through February 29, 2001, and each succeeding annual payment shall be for similar succeeding twelve-month periods ended February 28 (or, if a leap year, February 29). And it is also expressly agreed that the aforesaid payments shall be in lieu of any and all other and additional occupation taxes, easement, franchise taxes or charges (whether levied as an ad valorem, special, or other character of tax or charge), municipal license, permit, and inspection fees, bonds, street taxes, and street or alley rentals or charges, and all other and additional municipal taxes, charges, levies, fees, and rentals of whatsoever kind and character which City may now impose or hereafter levy and collect from Company or Company's agents, excepting only the usual general or special ad valorem taxes which City is authorized to levy and impose upon real and personal property. Should City not have the legal power to agree that the payment of the foregoing sums of money shall be in lieu of taxes, licenses, fees, street or alley rentals or charges, easement or franchise taxes or charges aforesaid, then City agrees that it will apply so much of said sums of money paid as may be necessary to satisfy Company's obligations, if any, to pay any such taxes, licenses, charges, fees, rentals, easement or franchise taxes or charges aforesaid. Each transportation customer of the Company shall disclose to the Company the purchase price of said gas. Should the transportation customer fail or refuse to disclose or furnish such purchase price to Company, Company shall establish same by utilizing a price equal to the index (large packages only) price per MMBtu published for each month in Inside FERC's Gas Market Report in the table titled "Delivered Spot Gas Prices" for gas delivered at Houston Ship Channel/'Beaumont, Texas, or a mutually agreeable successor publication and index. Such index price for any given month shall be multiplied by the actual volume transported by Company during such month for such transportation TXU Lone Star Gas Franchise Agreement Ordinance No. Page 5 of 7 customer, and the product thereof shall then be multiplied by the applicable percentage to determine the amount due the City. Company shall use all due diligence in collecting from customers any and all sums due or owed to the City for the franchise fee on transportation transactions; however, the Company shall be obligated to pay to the City only the franchise fees actually collected from the transportation customers. Company agrees that on the same date that payments are made, as provided in this Section 8, it will file with the City Secretary a sworn report showing the gross receipts received by the Company from the sale of gas to its residential and commercial customers within City during the calendar year preceding the date of payment. City may, if it sees fit, have the books and records of Company examined by a representative of City to ascertain the correctness of the sworn reports agreed to be filed herein. SECTION 9. When this franchise ordinance becomes effective, all previous ordinances of City granting franchises for gas delivery purposes which were held by Company shall be automatically canceled and annulled, and shall be of no further force and effect. SECTION 10. In order to accept this franchise, Company must file with the City Secretary its written acceptance of this franchise ordinance within sixty days after the final passage and approval of the ordinance by City. If written acceptance of this franchise ordinance is not filed by Company after its final passage and approval by said City, the franchise ordinance shall be rendered null and void. SECTION 11. This ordinance, if it is accepted as provided in Section 10 hereof, shall become effective on January 13, 2000, SECTION 3. All ordinances and resolutions, or parts of ordinances and resolutions, in conflict with this Ordinance are hereby repealed, and are no longer of any force and effect. SECTION 4. If any provision of this ordinance or application thereof to any person or circumstance, shall be held invalid, such invalidity shall not affect the other provisions, or application thereof, of this ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this ordinance are hereby declared to be severable. SECTION 5. The Mayor is hereby authorized to sign this ordinance and the City Secretary to attest. This ordinance shall become effective and be in full force and effect thirty (30) days after its final passage, in accordance with the provisions of Section 8.03 of the Charter of the City of Georgetown. PASSED AND APPROVED on First Reading on the 9th day of November, 1999. PASSED AND APPROVED on Second Reading on the 14th day of December, 1999. TXU Lone Star Gas Franchise Agreement Ordinance No. Page 6 of 7 ATTEST: THE CITY OF GEORGE' By:l� Sandra Lee �MaryEllen Kersch, City Secretary D AS TO FORM: Marianne Landers Banks City Attorney TXU Lone Star Gas Franchise Agreement Ordinance No. Page 7 of 7 N: I