HomeMy WebLinkAboutORD 2023-19 - Direct Propane ServicesOrdinance No. ZOZ3 - ]!J
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
GEORGETOWN, TEXAS ("CITY") ADDING CHAPTER 14.06 OF
THE GEORGETOWN CODE OF ORDINANCES GRANTING A
PUBLIC UTILITY FRANCHISE TO DIRECT PROPANE
SERVICES; REPEALING CONFLICTING ORDINANCES AND
RESOLUTIONS; 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 establishment of any franchise affecting said places except as provided in the
Charter;
WHEREAS, Article VIII of the Charter grants the City Council the power by
ordinance to establish, amend, and grant 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, Direct Propane Services is a gas utility under Chapter 101 of the Texas
Utilities Code; and
WHEREAS, the City Council finds it necessary and desirable to add Chapter 14.06
of the Code of Ordinances granting the franchise upon the terms and conditions as set forth
herein.
Ordinance Number: UL3 —I I Page 1 of 3
Description: Granting a Franchise to Direct Propane Services
Date Approved: 1 2023
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.
Section 2. Chapter 14.06 of the City's Code of Ordinances is hereby added as
shown in Exhibit A attached hereto.
Section 3. The City Secretary is hereby directed to publish notice of this Franchise
in compliance with Section 8.03 of the City Charter.
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.
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
on the 31 st day following its final passage by the City Council. In order to accept this
franchise, Franchisee must file with the City Secretary its written acceptance of this
franchise ordinance within sixty (60) days of its passage and approval by the City.
PASSED AND APPROVED on First Reading on the % of , 2023.
PASSED AND APPROVED on Second Reading on the i�� Of , 2023.
Ordinance Number: ?AT3— j*jg Page 2 of 3
Description: Granting a Franchise to Direct Propane Services
Date Approved: 2023
ATTEST:
Robyn Densmore, City Secretary
APPROVED AS TO FORM:
kye sson, City Attorney
THE CUY OF GEORGETOWN
Ordinance Number: 9 Page 3 of 3
Description: Granting a Franchise to Direct Propane Services
Date Approved: l 2023
CODE OF ORDINANCES
Title 14 - FRANCHISES
CHAPTER 14.06 DIRECT PROPANE SERVICES
CHAPTER 14.06. DIRECT PROPANE SERVICES
Sec. 14.06.010. Franchise granted —Term.
A. The City of Georgetown, Texas, hereinafter called "City," grants to Direct Propane Services, 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 February 28, 2033. Unless written notice of its intent to renegotiate is provided by either
the City or Direct Propane Services 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. 14.06.020. 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 -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
Georgetown, Texas, Code of Ordinances
Page 1 of 11
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.
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.
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 underthis 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 City on
the timing and duration of disruptions. Whenever possible, work on major roadways shall be undertaken at
off-peak traffic times.
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.
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 Direct Propane Services 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 Direct Propane Services
may, at its option, choose to relocate to the depth determined necessary by the City Engineer or relocate the
facilities to a different route.
Page 2 of 11
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 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 party 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 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.
Page 3 of 11
Sec. 14.06.030. 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; EXCEPTTHATTHE 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 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.
Page 4 of 11
Sec. 14.06.040. 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. 14.06.050. 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.
Sec. 14.06.060. 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. 14.06.065. 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
Page 5 of 11
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. 14.06.070. 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 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. 14.06.080. 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, 2023, based on Gross Revenues collected in the one month period December 1,
2022 through December 31, 2022 for the one month privilege period of March, 2023. Thereafter, except as
otherwise provided by Section 14.06.080.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
Page 6 of 11
(4) "Gross Revenues" shall include:
(a) the following 'miscellaneous charges':
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 Direct Propane Services;
(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.
(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;
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(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.
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
14.06.080 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.
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 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. 14.06.085. 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.
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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, Direct Propane Services 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 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. 14.06.090. 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. 14.06.095 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 14.06.100. 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. 14.06.100. 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
City of Georgetown
Webberville Propane, Inc., a Texas corporation d/b/a
P.O. Box 409
Direct Propane Services
Georgetown, Texas 78627-0409
City Attorney
Stephen Turner
City of Georgetown
P.O. Box 619
P.O. Box 409
Manor, Texas 78653
Georgetown, Texas 78627-0409
512-276-7800
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 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, the Company will attempt to respond to the emergency with
qualified local contractors. The Company's contact information shall be kept current at all times. The Company
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. 14.06.110. 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
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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. 14.06.120. 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. 14.06.130. 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. 14.06.140. Compliance with Laws, Charter, and Ordinances.
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.
Sec. 14.06.150. 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. 14.06.160. Effective date.
The ordinance codified in this chapter, if it is accepted as provided in Section 14.06.150, shall become effective
and be in full force and effect on the 31st day following its final passage by the City Council.
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