HomeMy WebLinkAboutORD 2020-83 - Atmos FranchiseOrdinance No. 2,0 ZO -93
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
GEORGETOWN, TEXAS EXTENDING THE FRANCHISE OF ATMOS
ENERGY AND CORPORATION, MID-TEX DIVISION; AMENDING
CHAPTER 14.04 OF THE CODE OF ORDINANCES RELATING TO THE
TERMS AND CONDITIONS OF THE FRANCHISE; REPEALING
CONFLICTING ORDINANCES AND RESOLUTIONS;
ESTABLISHING A PENALTY; INCLUDING A SEVERABILITY
CLAUSE; AND DECLARING AN EFFECTIVE DATE.
WHEREAS, the City of Georgetown, Texas (the "City") is a home -rule municipality
incorporated under Article XI of the Texas Constitution;
WHEREAS, pursuant to Section 1.04 of the Home Rule Charter (the "Charter") of the
City, the City has "exclusive dominion, control and jurisdiction in, upon, over and under the public
streets, sidewalks, alleys, highways, public squares and public ways (except those under State
control if required by State law) that are within the corporate limits of the city, and in, upon, over,
and under all public property of the City";
WHEREAS, the Charter provides for the inalienability of all public streets, highways,
sidewalks, alleys, parks, public squares, and public places of the City and prohibits the renewal or
amendment of any franchise affecting said places except as provided in the Charter;
WHEREAS, the Charter grants the City Council the power by ordinance to amend and
extend all franchises of public utilities operating within the City of Georgetown;
WHEREAS, Section 103.002 of the Texas Utilities Code states that the Gas Utility
Regulatory Act "does not restrict the rights and powers of a municipality to grant or refuse a
franchise to use the streets and alleys in the municipality or to make a statutory charge for that
use";
WHEREAS, Atmos Energy and Corporation, Mid -Tex Division ("Atmos") is a gas utility
under Chapter 101 of the Texas Utilities Code;
WHEREAS, in 1978 the City granted TXU Lone Star Gas, the predecessor -in -interest to
Atmos, a franchise to operate within the City's rights -of -way and other public places, and said
franchise was renewed in 1999 for an additional 20-year term;
WHEREAS, Atmos acquired TXU Lone Star Gas's operations in Georgetown, including
its franchise rights, in 2004, and the current franchise is set to expire on December 31, 2020;
Ordinance Number: 7(J_j Pagel of 3
Description: Chapter 14.04 Atmos Franchise
Date Approved: Qftg&J32L8� 2020
WHEREAS, Atmos desires to extend its franchise to operate within the City's rights -of -
way through March 31, 2031, and the City is willing to extend the franchise as requested if Atmos
agrees to certain material changes to improve communication and coordination regarding work
within the City's rights -of -way, to limit Atmos's activities within City parkland, to share leak
remediation information, to require relocation of Atmos facilities when necessary, and to grant the
City audit and inspection rights, among other provisions; and
WHEREAS, the City Council finds it necessary and desirable to amend Chapter 14.04 of
the Code of Ordinances to extend the term of the franchise upon the terms and conditions as set
forth herein.
NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF GEORGETOWN, TEXAS:
Section 1. The meeting at which this ordinance was approved was in all things conducted
in compliance with the Texas Open Meetings Act, Texas Government Code Chapter 551.
Section 2. 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.
Section 3. Chapter 14.04 of the Code of Ordinances is amended as shown on Exhibit A
attached hereto.
Section 4. All ordinances or resolutions that are in conflict with the provisions of this
ordinance are, and the same are hereby, repealed and all other ordinances or resolutions of the City
not in conflict with the provisions of this ordinance shall remain in full force and effect; however,
nothing in this agreement is intended to waive any legal right held by or granted to the City in the
regulation of franchises within the City and no waiver or relinquishment shall be deemed to have
been made by the City unless such waiver or relinquishment is in writing and signed by the City.
Section 5. 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 6. 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 upon acceptance by
Atmos, no sooner than 30 days after final passage, in accordance with the provisions of the Charter
of the City of Georgetown. Notwithstanding the foregoing, in order to accept this franchise, Atmos
must file with the City Secretary its written acceptance of the franchise ordinance within 60 days
after the final passage and approval of this ordinance by City, otherwise this ordinance shall be
rendered null and void.
Ordinance Number: -ZLZQ -& Page 2 of 3
Description: Chapter 14.04 Atmos Franchise
Date Approved: QgCW,6{ `SV 2020
PASSED AND APPROVED on First Reading on the 1-1 of 2020.
PASSED AND APPROVED on Second Reading an the _g of�, 2020.
CITY OF GEORGETOWN, TEXAS _----ATTEST:
-)b5 ro
Robyn De mare, City Secretary
APPROVED AS TO FORM:
SKyeMassok, City Attorney
Ordinance Number: Page 3 of 3
Description: Chapter 14.04 Atr os Franchise
Date Approved: yrQ,hdnK 1 020
CHAPTER 14.04. —ATMOS ENERGY CORPORATION, MID-TEX DIVISION
Sec. 14.04.010. - Franchise granted —Term.
A. The City of Georgetown, Texas, hereinafter called "City," grants to Atmos Energy and Corporation,
Mid -Tex Division, hereinafter called "Company," its successors and assigns, consent to use occupy
the present and future streets, alleys, highways, public utility easements, and public ways ("Public
Rights -of -Way"), for the purpose of laying, maintaining, constructing, protecting, operating, and
replacing therein and thereon pipelines and all other appurtenant equipment ("System Facilities") 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. To the extent that Company has existing System Facilities in public places
not included in the definition of Public Rights -of -Way at the commencement of this franchise, Company
may continue to occupy such public places, subject to all restrictions and obligations contained herein.
B. The consent being granted hereunder is for a term beginning upon adoption by City and acceptance
by Company, and ending March 31, 2031. Unless written notice of its intent to renegotiate is provided
by either the City or Atmos Energy at least 180 days prior to the expiration of any term, the franchise
shall be extended for up to two (2) additional terms of five (5) years each on the same terms and
conditions as set forth herein.
C. 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. If the parties cannot come to agreement upon any provisions
being renegotiated, then the existing provisions of this Ordinance will continue in effect for the
remaining term of the Franchise.
Sec. 14.04.020. - Construction, removal, relocation of equipment.
A. All construction and work done by the Company, and the operation of its business, under and by virtue
of this franchise, shall be in conformance with the ordinances, rules, and regulations now in force and
that may hereafter be adopted or amended by City related to the use of its Public Rights -of -Way,
provided such ordinances, rules, and regulations do not conflict with this franchise. If the franchise
does not provide an express provision governing the use of the Public rights -of -Way, the requirement
of the Code of Ordinances controls.
B. Company shall construct its System Facilities in conformance with City ordinances or regulations
adopted pursuant to authority delegated by ordinance, in order to minimize interference with traffic.
The location of all Company's System Facilities shall be fixed in coordination with and under the
supervision of the City, and as provided in the permit issued by the City. When Company makes, or
causes to be made, excavations, or places, or causes to be placed, obstructions in any Public Rights-
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of -Way, Company shall place, erect, and maintain barriers and lights to identify the location of such
excavations or obstructions.
C. In determining the location of Company's System Facilities 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 System Facilities of Company and shall
require other utility franchisees to minimize interference with existing System Facilities of Company.
In the event of a conflict between the location of Company's System Facilities and the location of the
facilities of City or other utility franchisees within Public Rights -of- that cannot otherwise be resolved,
City or an authorized agent of City shall resolve the conflict and determine the location of the respective
facilities.
D. If Company desires to install System Facilities on or under public parkland or other City -owned
property that is not a Public Right -of -Way, it shall seek specific permission for such installation from
City and shall proceed in coordination with City and in compliance with all applicable State laws,
including Chapter 26 of the Texas Parks and Wildlife Code, and with all applicable City ordinances,
rules, and regulations.
E. Except in an emergency, Company shall be required to obtain street cutting, street excavation and
other special permits related to work in Public Rights -of -Way in connection with Company's operations
in Public Rights -of -Way. The Company or contractors working on behalf of the Company shall not be
required to pay for such permits. The Company shall notify the City by telephone or electronic mail
prior to beginning emergency street cutting, street excavation, or other emergency work, if at all
possible. Such work performed without first obtaining a permit shall be reported and a permit for such
work shall be obtained as soon as practical.
F. Company shall designate an individual or individuals as the person or persons primarily responsible
for communications with the City and authorized to speak for and represent the Company in such
communications. The City shall be entitled to contact the designated individual or individuals on any
matters associated with Company's occupancy and use of the Public Rights -of -Way, and Company's
performance of its obligations under this franchise. Company shall promptly communicate with the
City's public safety and control center in the event Company becomes aware of major gas leaks on its
system or significant unplanned disruption of service to multiple customers within the City for reasons
other than non-payment, meter tampering, or other customer -driven reason. Company shall also notify
the City when Company expects to undertake work that will result in disruption of service for a
significant period of time to multiple customers.
G. 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. The Company shall coordinate with the
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City on the timing and duration of disruptions. Whenever possible, work on major roadways shall be
undertaken at off-peak traffic times.
H. Company shall promptly, not to exceed a period of twenty (20) days following the completion of its
construction activities, restore to its approximate original condition and to the reasonable satisfaction
of the City all Public Rights -of -Way disturbed during the construction or repair of the Company's
facilities. If such repairs and restoration are not completed within twenty (20) days and there is no
intervening force majeure, then City shall have the right to make the repairs or restoration at
Company's expense within ten (10) days after giving written notice to Company of City's intent to do
so. Company shall promptly pay City's costs . Company shall warrant and guarantee its restoration
work for a period of one year following the completion of such restoration work to the satisfaction of
City.
I. When the Company is required by City to remove or relocate its System Facilities to accommodate
construction of sewers, drainage, water lines, streets, utilities, or other public works projects by City,
Company shall promptly remove or relocate its System Facilities that are in conflict at its expense,
unless such work is for the primary purpose of beautification or to accommodate a private developer.
For this purposes of this section, a project is not undertaken primarily for beautification unless more
than fifty percent (50%) of the project costs are allocated to costs unassociated with those required to
meet City standards for highway, road, street, public ways, or other public work including costs
associated with water, sewer, drainage, paving and subgrade, curb and gutter, and sidewalk
construction. Facilities are deemed to be in conflict to the extent that the proposed City facilities are
determined by Atmos Energy to be inconsistent with gas distribution industry standard safe operating
practices for existing facilities. Company shall not be required to relocate facilities to a depth of greater
than four (4) feet unless prior agreement is obtained from Company. If the City Engineer determines
that relocation to a depth of greater than four (4) feet is necessary, then Atmos Energy may, at its
option, choose to relocate to the depth determined necessary by the City Engineer or relocate the
facilities to a different route.
J. When the Company is required by the City to remove or relocate its System Facilities 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's 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's costs and expenses are approved for reimbursement, the Company shall receive its
portion of reimbursement payments attributable to its System Facilities. The City shall remit to
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Company any amounts paid to the City by any third party as to approved reimbursements to
compensate the City and/or the Company for the costs of any such removal or relocation.
K. If the Company is required by City to remove or relocate its System Facilities for any reason other than
the construction or reconstruction of sewers, drainage, water lines, streets, utilities, or other public
works projects 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 from customers for the cost of such
work pursuant to applicable state and/or federal law. City shall not oppose recovery of relocation costs
when Company is required by City to perform relocation. City shall not require that Company
document request for reimbursement as a pre -condition to recovery of such relocation costs.
L. If the City intends to abandon any portion of Public Rights -of -Way in which System Facilities are
located, City will give written notice of such intent to Company, and shall include in such notification
the expected date by which the abandonment shall take effect. If Public Right -of -Way is sold,
conveyed, abandoned, or surrendered by the City to a third party, such action shall be conditioned
upon Company's right to maintain use of the former Public Right -of -Way. If the third parry requests
Company to relocate its System from the former Public Right -of -Way, and if such relocation is agreed
to by Company (such agreement to not be unreasonably withheld), such relocation shall be at the
expense of the party requesting same. In addition, in the event of a third party requesting the
relocation, if the 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.
M. Upon reasonable request by City for a public health, safety, or welfare purpose, or to generally inform
the City's planning for public projects, the Company shall provide maps in a digital format showing the
location of its System Facilities and shall cooperate with the City in locating its System Facilities when
necessary to avoid conflict and protect the health and safety of the public. Under no circumstances
shall the City rely solely on maps previously provided by the Company for the purpose of avoiding
conflict with Company's System Facilities. All maps temporarily provided by the Company to the City
shall be deemed confidential and proprietary, and will be provided solely for the City's use.
N. Unless otherwise directed by a state or federal authority, Company shall promptly provide the City,
upon City's request, a copy of all final leak remediation plans prepared by the Company or on its behalf
in response to leaks or other gas emission incidents in the City. The City will maintain the
confidentiality of the plans, as provided in Paragraph O. herein.
O. The City agrees to maintain the confidentiality of any non-public information obtained from the
Company to the extent allowed by law. If the City receives a request under the Texas Public
Information Act that includes the Company's previously designated proprietary or confidential
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information, the City shall notify the Texas Attorney General of the proprietary or confidential nature
of the document(s) and provide notice to the Company of any request for release of information
previously designated by the Company as proprietary or confidential non-public information.
Thereafter, Company is responsible for establishing that an exception under the Texas Public
Information Act allows City to withhold the information.
Sec. 14.04.030. - City indemnification, hold harmless requirement, insurance.
A. IN CONSIDERATION OF THE GRANTING OF THIS FRANCHISE, THE COMPANY AGREES TO
INDEMNIFY, DEFEND AND HOLD HARMLESS CITY, ITS OFFICERS, AGENTS, EMPLOYEES
(CITY AND SUCH OTHER PERSONS AND ENTITIES BEING COLLECTIVELY REFERRED TO
HEREIN AS "INDEMNITEES"), FROM AND AGAINST ALL SUITS, ACTIONS OR CLAIMS OF
INJURY TO ANY PERSON OR PERSONS, OR DAMAGES TO ANY PROPERTY BROUGHT OR
MADE FOR OR ON ACCOUNT OF ANY DEATH, INJURIES TO, OR DAMAGES RECEIVED OR
SUSTAINED BY ANY PERSON OR PERSONS OR FOR DAMAGE TO OR LOSS OF PROPERTY
ARISING OUT OF, OR OCCASIONED BY THE COMPANY'S INTENTIONAL AND/OR NEGLIGENT
ACTS OR OMISSIONS IN CONNECTION WITH THE COMPANY'S CONSTRUCTION,
RECONSTRUCTION, MAINTENANCE, REPAIR, USE, OPERATIONS OR DISMANTLING OF
SYSTEM FACILITIES OR THE COMPANY'S PROVISION OF SERVICE; EXCEPT THAT THE
INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY TO THE EXTENT ANY
LIABILITY IS DETERMINED TO HAVE RESULTED FROM NEGLIGENCE OR INTENTIONAL ACTS
OR OMISSIONS OF CITY, ITS OFFICERS, AGENTS AND EMPLOYEES. IN THE EVENT OF JOINT
AND CONCURRENT NEGLIGENCE OR FAULT OF BOTH THE COMPANY AND CITY,
RESPONSIBILITY AND INDEMNITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS WITHOUT, HOWEVER, WAIVING
ANY OF THE DEFENSES OF THE PARTIES UNDER TEXAS LAW. FURTHER, IN THE EVENT OF
JOINT AND CONCURRENT NEGLIGENCE OR FAULT OF BOTH THE COMPANY AND CITY,
RESPONSIBILITY FOR ALL COSTS OF DEFENSE SHALL BE APPORTIONED BETWEEN CITY
AND THE COMPANY ENERGY BASED UPON THE COMPARATIVE FAULT OF EACH.
B. By entering into this Franchise Ordinance, City does not consent to suit, waive any governmental
immunity available to the City under Texas Law or waive any defenses of the parties under Texas law.
C. In the event any action or proceeding shall be brought against the Indemnitees by reason of any matter
for which the Indemnitees are indemnified hereunder, the Company shall, upon notice from any of the
Indemnitees, at Company's sole cost and expense, resist and defend the same with legal counsel
selected by Company, provided; however, that Company shall not admit liability in any matter on behalf
of the Indemnitees without their written consent and provided further that Indemnitees shall not admit
liability for, nor enter into any compromise or settlement of, any claim for which they are indemnified
hereunder, without the prior written consent of the Company. The Company's obligation to defend shall
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apply regardless of whether Company is solely or concurrently negligent provided that Indemnitees
may be held responsible for the cost of such defense paid for by the Company. Indemnitees shall give
the Company prompt notice of the making of any claim or commencement of any action, suit or other
proceeding covered by the provision of this Section. Nothing herein shall be deemed to prevent the
Indemnitees at their election and their own expense from cooperating with the Company and
participating in the defense of any litigation by their own counsel.
D. In fulfilling its obligation to defend and indemnify City, the Company shall have the right to select
defense counsel, subject to City's approval, which shall not be unreasonably withheld. The Company
shall retain defense counsel within seven business days of City's written notice that City is invoking its
right to indemnification under this Franchise. If the Company fails to retain counsel within such time
period, City shall have the right to retain defense counsel on its own behalf, and the Company shall be
liable for all defense costs incurred by City, except as otherwise set out in this Section.
E. The Company's insurance of its obligations and risks undertaken pursuant to this franchise may be in
the form of self-insurance to the extent permitted by applicable law, under a Company plan of self-
insurance maintained in accordance with sound accounting and risk -management practices. This
franchise shall constitute consent by the City for the Company to self -insure its obligations in
satisfaction of City's permitting requirements for activities performed hereunder.
Sec. 14.04.040. - Services rules, regulations, charges —Authority —Enforcement.
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.
Sec. 14.04.050. - Extension of distribution mains.
Company shall be required to extend distribution mains in any public rights -of -way up to 100 feet 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.
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Sec. 14.04.060. - Deposit from customers.
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. Such 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.
Sec. 14.04.065. — Laying of lines in advance of public improvements.
A. Whenever City shall decide to make public improvements in the Public Rights -of -Way in which the
Company's System Facilities already exist or in which the Company may propose to install its System
Facilities, the Company will be provided the opportunity, at no expense to City, in advance of such
improvements to renew such System Facilities, if defective or inadequate in size and to lay System
Facilities, or renew same, if inadequate in size or defective, to the property lines where buildings may
be located provided such activities do not delay the City's public improvements.
B. The Company shall be given written notice of the intention of City to make major public improvements
in any such Public Rights -of -Way. Within 90 days from receipt of such notice, the Company, if it has
determined a need, shall initiate work and thereafter proceed in a workman -like manner to completion
of the necessary work and shall complete such work within three months of being granted a permit to
preclude the delay of said public improvements. The Company shall take reasonable measures to
ensure uninterrupted service to its customers and shall reconnect all customer service lines
disconnected in the normal course of construction at its own expense. If the Company should fail to so
proceed, and any street or alley is thereupon paved, except in an emergency or in response to a request
for initiation of new service, the Company shall for three years thereafter not be allowed to cut such
pavement or excavate in such paved street or alley for any purpose. All pavement cuts or excavations
within the three-year period, except in response to an emergency or in response to a request for
initiation of new service, shall be performed only upon written permission of the City under such terms
and conditions as the City may prescribe.
Sec. 14.04.070. - Rights not exclusive; reservation of rights.
A. The rights, privileges, and franchises granted by the ordinance codified in this chapter are not to be
considered exclusive, and City 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
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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.
B. City reserves to itself the right and power at all times to exercise, in the interest of the public and in
accordance with State law, regulation and control of the Company's use of the public right-of-way to
ensure the rendering of efficient public service and the maintenance of the Company's System Facilities
in good repair throughout the term of this franchise.
C. Nothing herein shall impair the right of City to fix, within constitutional and statutory rights, a reasonable
price to be charged for natural gas, or to provide and fix a scale of prices for natural gas and other
charges, to be charged by the Company to all consumers, within the territorial limits of the City as same
now exist or as such limits may be extended from time to time hereafter.
Sec. 14.04.080. - Consideration to City.
A. The consideration payable by the Company for the rights and privileges granted herein shall be five
percent (5%) of the Gross Revenues, as defined below, received by the Company. The first payment
hereunder shall be on or before February 15, 2021, based on the one month period December 1, 2020
through December 31, 2020 for the one month privilege period of March, 2021. Thereafter, except as
otherwise provided by Section 14.04.080.C., such payments shall be made on a quarterly basis, on or
before the 15th days of February, May, August and November of each year. Payments shall be for
the rights and privileges during the quarter in which the payment is made and shall be based on the
preceding quarter.
B. "Gross Revenues" shall mean:
(1) all revenues received by the Company from the sale of gas to all classes of customers (excluding
gas sold to another gas utility in the City for resale to its customers within City) within the City;
(2) all revenues received by the Company from the transportation of gas through the System
Facilities of Company within the City to customers located within the City (excluding any gas
transported to another gas utility in City for resale to its customers within City) ;
(3) the value of gas transported by Company for Transport Customers through the System Facilities
of Company within the City ("Third Party Sales") (excluding the value of any gas transported to
another gas utility in City for resale to its customers within City), with the value of such gas to be
established by utilizing the Company's monthly industrial Weighted Average Cost of Gas charged
to industrial customers in the Mid -Tex Division, as reasonably near the time as the transportation
service is performed; and
(4) "Gross Revenues" shall include:
(a) the following 'miscellaneous charges':
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i. charges to connect, disconnect, or reconnect gas within the City;
ii. charges to handle returned checks from consumers within the City; and
iii. contributions in aid of construction ("CIAC");
(b) revenues billed but not ultimately collected or received by the Company;
(c) State gross receipts fees; and
(d) fees collected pursuant to this ordinance.
(5) "Gross Revenues" shall not include:
(a) the revenue of any affiliate or subsidiary of Atmos Energy;
(b) sales tax paid to the City;
(c) interest or investment income earned by the Company; and
(d) all monies received from the lease or sale of real or personal property, provided, however,
that this exclusion does not apply to the lease of facilities within the City's right of way.
C. Calculation and Payment of Franchise Fees Based on CIAC
(1) The franchise fee amounts based on "Contributions in Aid of Construction" ("CIAC") shall be
calculated on an annual calendar year basis, i.e., from January 1 through December 31 of each
calendar year.
(2) The franchise fee amounts that are due based on CIAC shall be paid at least once annually on
or before April 30 each year based on the total CIAC recorded during the preceding calendar
year.
D. Effect of Other Municipal Franchise Ordinance Fees Accepted and Paid by the Company
(1) If the Company should at any time after the effective date of this Ordinance agree to a new
municipal franchise ordinance, or renew an existing municipal franchise ordinance, with another
municipality, which municipal franchise ordinance determines the franchise fee owed to that
municipality for the use of its public rights -of -way in a manner that, if applied to the City, would
result in a franchise fee greater than the amount otherwise due City under this Ordinance, then
the franchise fee to be paid by the Company to City pursuant to this Ordinance may, at the election
of the City, be increased so that the amount due and to be paid is equal to the amount that would
be due and payable to City were the franchise fee provisions of that other franchise ordinance
applied to City. The City acknowledges that the exercise of this right is conditioned upon the
City's acceptance of all terms and conditions of the other municipal franchise in toto. The City
may request waiver of certain terms and Company may grant, in its sole reasonable discretion,
such waiver.
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(2) The provisions of this Subsection D apply only to the amount of the franchise fee to be paid and
do not apply to other franchise fee payment provisions, including without limitation the timing of
such payments.
E. Company Franchise Fee Recovery Tariff
(1) The Company may file with the City a tariff amendment(s) to provide for the recovery of the
franchise fees under this agreement.
(2) City agrees that:
(i) As regulatory authority, it will adopt and approve the ordinance, rates or tariff which provide
for 100% recovery of such franchise fees as part of the Company's rates;
(ii) If the City intervenes in any regulatory proceeding before a federal or state agency in which
the recovery of the Company's franchise fees is an issue, the City will take an affirmative
position supporting 100% recovery of such franchise fees by the Company and;
(iii) In the event of an appeal of any such regulatory proceeding in which the City has intervened,
the City will take an affirmative position in any such appeals in support of the 100% recovery
of such franchise fees by the Company.
(3) City agrees that it will take no action, nor cause any other person or entity to take any action, to
prohibit the recovery of such franchise fees by the Company.
F. Lease of Facilities Within City's Rights -of -Way. The Company shall have the right to lease, license or
otherwise grant to a party other than the Company the use of its System Facilities within the City's
public rights -of -way provided:
(i) The Company first notifies the City of the name of the lessee, licensee or user; the type of
service(s) intended to be provided through the facilities; and the name and telephone number of
a contact person associated with such lessee, licensee or user and
(ii) The Company makes the franchise fee payment due on the revenues from such lease pursuant
to Section 14.04.080 of this Ordinance. This authority to lease System Facilities within City's
rights -of -way shall not affect any such lessee, licensee or user's obligation, if any, to pay franchise
fees.
G. City shall endeavor to, within 30 days of final approval and submission to the Texas Comptroller of
Public Accounts, give the Company notice of annexations and disannexations of territory by City, which
notice shall include a map and addresses, if known. Upon receipt of said notice, the Company shall
promptly initiate a process to reclassify affected customers into the City limits, not later than 60 days
after receipt of notice from City. The annexed areas added to the City limits will be included in future
franchise payments in accordance with the effective date of the annexation if notice was timely received
from City. Upon request from City, the Company will provide documentation to verify that affected
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customers were appropriately reclassified and included for purposes of calculating franchise payments.
In no event shall Company be required to add premises for the purpose of calculating franchise
payment prior to the earliest date that the same premises are added for purposes of collecting sales
tax.
H. 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 that 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 that City is authorized to levy and impose upon real and personal property owned by Company
in fee, including any street improvement assessment fees or charges imposed upon Company property
and not connected to Company's work in the Public Rights -of -Way. If the City does 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.
Sec. 14.04.085. - Right to verify accounts.
A. At the time of each quarterly payment hereunder, the Company shall also submit to the City a
statement showing its Gross Revenues, as defined herein, for the preceding calendar quarter. City
shall be entitled to treat such statement as though it were sworn and signed by an officer of the
Company.
B. The City shall have the right at all reasonable times not to exceed once per fiscal year, acting through
its City Manager or designated officer, attorney, representative, or agent to inspect, review, audit and
examine all the books, records and invoices of Company applicable to this franchise agreement and
to the prior franchise agreement, unless waived by the City. The City may request reports on the
operations of the utility in whatever format such reports are prepared or maintained by the Company.
The Company shall endeavor to supply the requested information within fifteen (15) business days. If
as the result of any City audit the Company is found to have failed to pay to the City the applicable
franchise fee due, then upon receipt of written notification from City regarding the existence of such
underpayment, Atmos Energy shall undertake a review of City's claim and if said underpayment is
confirmed, remit the amount of underpayment to City. The Company may request additional
information regarding such audit findings or contest such audit findings. If the audit results in a finding
that the Company has overpaid the City, the overpayment amount will be offset against the next
payment due by the Company. The Company shall be responsible for paying the City's costs
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associated with any subsequent audit commenced within two (2) years of the initial audit to the extent
that both audits determine underpayments in excess of 5% on an annual basis.
C. If the Company fails to pay when due any amount provided in this Franchise, the Company shall pay
such amount plus interest consistent with the rate for customer deposits under Texas Utilities Code
Section 183.003 from such due date until payment is received by the City.
Sec. 14.04.090. - Cancellation of previous franchise.
When the franchise ordinance codified in this chapter 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.
Sec. 14.04.095 - Termination.
A. Right to Terminate. In addition to any rights set out elsewhere in this Ordinance, City reserves the
right to terminate the Franchise and all rights and privileges pertaining thereto, in the event that
Company violates any material provision of the Franchise.
B. Procedures for Termination.
(1) City may, at any time, terminate this Franchise for a continuing material violation by the Company
of any of the substantial terms hereof. In such event, the City shall give to the Company written
notice, specifying all grounds on which termination or forfeiture is claimed, by registered mail,
addressed and delivered to Company at the address set forth in Section 14.04.100. hereof. The
Company shall have sixty (60) days after the receipt of such notice within which to cease such
violation and comply with the terms and provisions hereof. In the event the Company fails to
cease such violation or otherwise comply with the terms hereof, then the Company's Franchise
is subject to termination under the following provisions. Provided, however, that if the Company
commences work or other efforts to cure such violations within thirty (30) days after receipt of
written notice and shall thereafter prosecute such curative work with reasonable diligence until
such curative work is completed, then such violations shall cease to exist, and the Franchise will
not be terminated.
(2) Termination shall be declared only by written decision of the City Council after an appropriate
public proceeding whereby the Company is afforded the full opportunity to be heard and to
respond to any such notice of violation or failure to comply. The Company shall be provided at
least fifteen business (15) days prior written notice of any public hearing concerning the
termination of the Franchise. In addition, ten (10) days' notice by publication shall be given of
the date, time and place of any public hearing to interested members of the public.
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(3) The City, after full public hearing, and upon finding material violation or failure to comply, may
terminate the Franchise or excuse the violation or failure to comply, upon a showing by the
Company of mitigating circumstances or upon a showing of good cause of said violation or failure
to comply as may be determined by the City Council.
(4) Nothing herein stated shall preclude the Company from appealing the final decision of the City
Council to a court or regulatory authority having jurisdiction.
(5) Nothing herein stated shall prevent the City from seeking to compel compliance by suit in any
court of competent jurisdiction if Company fails to comply with the terms of this Franchise after
due notice and the providing of adequate time for Company to comply.
Sec. 14.04.100. - Notices
A. Any notices required or desired to be given from one party to the other party to this
Ordinance shall be in writing and shall be given and shall be deemed to have been served
and received if: (i) delivered in person to the address set forth below; (ii) deposited in an
official depository under the regular care and custody of the United States Postal Service
located within the confines of the United States of America and sent by certified mail, return
receipt requested and addressed to such party at the address hereinafter specified; or
(iii) delivered to such party by courier receipted delivery. Either party may designate another
address within the confines of the continental United States of America for notice, but until
written notice of such change is actually received by the other party, the last address of such
party designated for notice shall remain such party's address for notice.
CITY COMPANY
City Manager Manager of Public Affairs
City of Georgetown Atmos Energy Corporation
P.O. Box 409 Mid -Tex Division
Georgetown, Texas 78627-0409 3110 135 N
Round Rock, TX 78681
City Attorney
City of Georgetown
P.O. Box 409
Georgetown, Texas 78627-0409
B. The Company shall provide to the City a local or toll -free telephone number that is manned
24 hours a day, seven days a week to provide available information relating to emergency
situations. The City understands that this telephone number is not equipped to handle calls
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from the public and the City will not provide this number to customers, but will direct them to
Company's Energy's Call Center. If the Company cannot timely respond to an
emergency with its employees, t h e Company will attempt to respond to the emergency with
qualified local contractors. The Company's contact information shall be kept current
at all times. T h e C o m p a n y and the City shall periodically, and upon request by either
party, meet to discuss and address emergency response issues in order to rectify any
problems identified by either party.
Sec. 14.04.110. Force Majeure.
Notwithstanding anything expressly or impliedly to the contrary contained herein, in the event either
the City or the Company is unable to comply with any obligation or undertaking contained herein by reason
of any event of force majeure, then, while so prevented, compliance with such obligations or undertakings
shall be suspended, and the time during which such party is so prevented shall not be counted against
such party for any reason. The term "force majeure" as used herein shall mean any cause not reasonably
within the control of the party unable to comply with its obligation or undertaking hereunder and includes,
but is not limited to, acts of God, strikes, lock -outs, wars, riots, orders or decrees of any lawfully constituted
federal, state or local body, epidemic, pandemic, contagions or contaminations hazardous to human life or
health, fires, storms, floods, wash -outs, explosions, breakage or accident to machinery or lines of pipe,
inability to obtain or delay in obtaining rights -of -way, materials, supplies or labor permits, temporary failures
of gas supply, or necessary repair, maintenance or replacement of facilities used in the performance of the
obligations contained in this Ordinance.
Sec. 14.04.120. - No Waiver
Either the City or the Company shall have the right to waive any requirement contained in this
Ordinance, that is intended for the waiving party's benefit, but, except as otherwise provided herein, such
waiver shall be effective only if in writing executed by the party for whose benefit such requirement is
intended. No waiver of any breach or violation of any term of this Ordinance shall be deemed or construed
to constitute a waiver of any other breach or violation, whether concurrent or subsequent, and whether of
the same or a different type of breach or violation
Sec. 14.04.130. - Severability.
This Ordinance and every provision hereof, shall be considered severable, and the invalidity or
unconstitutionality of any section, clause, provision or portion of this Ordinance shall not affect the validity
or constitutionality of any other portion of this Ordinance. If any term or provision of this Ordinance is held
to be illegal, invalid or unenforceable, the legality, validity or unenforceability of the remaining terms or
provisions of this Ordinance shall not be affected thereby.
Sec. 14.04.140. - Compliance with Laws, Charter, and Ordinances.
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This Franchise is granted subject to the laws of the United States of America and its regulatory
agencies and commissions and the laws of the State of Texas, the Georgetown City Charter, as amended,
and all other generally applicable ordinances of the City of Georgetown, not inconsistent herewith, including,
but not limited to, ordinances regulating the use of public rights -of -way.
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Sec. 14.04.150. - Acceptance of franchise.
In order to accept this franchise, Company must file with the City Secretary its written acceptance of
the franchise ordinance within 60 days after the final passage and approval of the ordinance by City. If
written acceptance of the 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.
Sec. 14.04.160. - Effective date.
The ordinance codified in this chapter, if it is accepted as provided in Section 14.04.100, shall become
effective upon acceptance by Company.
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