Unless otherwise indicated in this chapter, the following meanings
in this chapter are:
means any exclusive or nonexclusive authority granted pursuant
to this chapter in terms of a franchise or otherwise to construct,
and/or operate and maintain a propane distribution system in the City
of Plymouth. This chapter is inapplicable to propane delivered by
vehicle to a customer's premises.
means all or any portion or portions of the incorporated
area of the City for which a franchise has been granted under this
chapter.
means the person to whom a franchise under this chapter is
granted by the City Council and any lawful successor or assignee of
that person.
means any and all compensation or receipts obtained from
and as a result of the operation of a propane distribution system
by a grantee within the franchise area, for a 12 month accounting
period, except that it does not include receipts or compensation for:
The installation, reconnection or any other nonrecurring charges;
The amount of any refunds, credits or other payments made to
customers or users;
Any taxes on services furnished by the grantee imposed directly
or indirectly on any customer or user by any municipal corporation,
political subdivision, State or other governmental unit and collected
by the grantee for the governmental unit;
The sale or transfer of tangible property;
The sale or transfer of the franchise;
The issuance, sale or transfer of corporation stocks, bonds
or other securities; and
Loans or gifts to the grantee.
means any property constructed, installed, operated or maintained
by a grantee under the authority of an exclusive franchise issued
pursuant to this chapter.
means the surface of, and the space above and below, any
public street, road, highway, freeway, lane, alley, court, sidewalk,
parkway, drive, public utility easement, or other public place as
may be authorized by the City Council, existing as such within the
incorporated area of this City as of or after the effective date of
the ordinance codified in this chapter.
(Ord. 2016-06 § 1)
A.
No person
shall extend, operate or carry on the business of distributing to
any persons in this City any propane unless a franchise therefor has
first been obtained pursuant to the provisions of this chapter and
unless the franchise is in full force and effect.
B.
No person
shall construct, install or maintain within any street in the City,
or within any other public property of the City, or within any privately
owned area within the City which has not yet become a public street
but is designated or delineated as a proposed public street on any
tentative subdivision map approved by the City, any equipment or facilities
for distributing propane unless a franchise authorizing the use of
the street or property or area has first been obtained pursuant to
the provisions of this chapter and unless the franchise is in full
force and effect.
(Ord. 2016-06 § 1)
A.
An exclusive
or nonexclusive franchise to construct, operate and maintain a propane
distribution system within any franchise area may be granted by the
City Council to any person, whether operating under an existing franchise
or not, offering to furnish and provide a system pursuant to the terms
and provisions of this chapter. No provision of this chapter shall
be construed as to require the granting of a franchise when in the
opinion of the City Council it is in the public interest to restrict
the number of grantees to one or more. Neither the granting of any
exclusive or nonexclusive franchise under this chapter nor any of
the provisions contained in this chapter shall be construed to prevent
the City from granting any identical, or similar, exclusive or nonexclusive
franchise to any person within another portion of the City.
B.
Any
entity operating a qualifying propane distribution system within the
City of Plymouth and not having a current franchise agreement as of
the effective date of the ordinance codified in this chapter shall,
within 180 days, apply for a franchise agreement. Approval of such
franchise agreement shall not be unreasonably withheld and shall include
a reasonable term for amortization of the entity's infrastructure.
(Ord. 2016-06 § 1)
A.
An application
for a franchise under this chapter shall be in writing and accompanied
by a nonrefundable payment to the City of $500 to reimburse the City
for expenses incurred in connection with processing and handling the
application. The application is to be submitted to the City Council
and will be referred to the City Attorney for coordination of the
review of the application prior to the City Council's setting
of a public hearing regarding the application. An application shall
contain the following information:
1.
The
name and address of the applicant;
2.
A
statement and description of the propane distribution system proposed
to be constructed, installed, maintained or operated by the applicant,
including storage tank facilities and installation and material specifications;
3.
The
proposed location of the system and its various components;
4.
A
description of the public streets, public places and proposed public
streets within which the applicant proposes or seeks authority to
construct, install or maintain any propane equipment or facilities;
5.
A
map specifically showing and delineating the proposed franchise area
within which the applicant proposed to provide propane distribution
services and for which a franchise is requested;
6.
A
statement or schedule in a form approved by the City Clerk or proposed
rates and charges to customers for installation and services, and
a copy of the proposed service agreement between the grantee and its
customers shall accompany the application;
7.
A
copy of any contract, if existing, between the applicant and any developer
or property owner for the proposed service area;
8.
A
statement setting forth all agreements and understandings, whether
written oral or implied, existing between the applicant and any person
who is a party in interest with respect to the proposed franchise
or the proposed propane distribution operation. If a franchise is
granted to a person posing as a front or as the representative of
another person, and that information is not disclosed in the original
application, the franchise shall be deemed void and of no force and
effect.
B.
In the
event that the applicant fails to submit an application which contains
the items specified in this section, at the time of submission to
the City, the applicant shall be so notified in writing by the City
Clerk within 45 days of receipt of the application by the Clerk of
the City Council. The applicant has the option, upon such notification
by the City Clerk, to either request that the application be set for
public hearing before the City Council in its incomplete form or shall
have six months to correct any incompleteness. If the applicant neither
requests a public hearing nor supplies an application containing the
requirements specified in this section, within six months of the notification
of incompleteness, the application will be considered lapsed and closed.
The applicant is not precluded from submitting a new application at
any time, upon payment of a new application fee. Any new application
shall be complete of itself without reference to any other prior application
which has lapsed.
(Ord. 2016-06 § 1)
Upon consideration of any application, the City Council may
refuse to grant the requested franchise or the City Council may by
resolution grant a franchise for a propane distribution system to
any applicant as may appear from its application to be in the opinion
of the City Council best qualified to render good and efficient propane
services to customers in the proposed franchise area. The application
submitted together with any amendments, and this chapter shall constitute
and form part of the franchise if granted. A franchise for propane
distribution systems shall only be awarded to an applicant following
full consideration by the City Council of the applicant's legal
character, financial, technical and other qualifications, applicant's
experience, the adequacy and feasibility of construction arrangements,
and any other consideration that will safeguard the public interest.
City Council action awarding or denying a franchise shall follow a
public hearing for which prior notice has been given and which affords
due process.
(Ord. 2016-06 § 1)
Within 30 days after the date of a City Council resolution awarding
a franchise, or within such extended period of time as the City Council
may authorize, which authorization shall not be unreasonably withheld,
the grantee shall file with the City Clerk written acceptance in forms
satisfactory to the City Attorney, together with the required bond
and insurance policies and agreement to be bound by and to comply
with and to do all things required by the provisions of this chapter
and the franchise. The acceptance and agreement shall be acknowledged
by the grantee before a notary public and shall be in form and content
satisfactory to, and approved by, the City Attorney. In the event
the grantee does not meet the deadlines provided in this section the
grantee's application and award of a franchise will be considered
automatically expired.
(Ord. 2016-06 § 1)
Any franchise granted pursuant to this chapter shall include,
among other things, the following condition: the propane distribution
system herein franchised shall be used and operated solely and exclusively
for the purpose expressly authorized by ordinance or resolution of
the City Council of Plymouth and no other purpose whatsoever. Inclusion
of the foregoing statement in any franchise shall not be deemed to
limit the authority of the City to include any other reasonable condition,
limitation or restriction which it may deem necessary to impose in
connection with a franchise granted pursuant to the authority conferred
by this chapter. The franchise agreement may also include provisions
for establishing operational requirements and customer service rates.
(Ord. 2016-06 § 1)
A.
Any
franchise granted by the City Council shall be for a term as specified
in the franchise agreement. The length of the term shall consider
any anticipated length of time for completion of the development of
the lots and a reasonable amount of time to amortize the cost of the
infrastructure installed by the applicant. The franchise may be modified
by mutual agreement of the parties during the term of the franchise.
A franchise may include renewal provisions for successive terms.
B.
Any
neglect, failure or refusal of a grantee to substantially comply with
any of the material terms or conditions of this chapter, the franchise
agreement, or law or regulation, continuing for more than 60 days
following written notice and an opportunity to cure such defect, shall
work a forfeiture thereof in addition to the other penalties and rights
provided in this chapter. The City Council may thereupon declare the
franchise forfeited and may exclude the grantee from further use of
acts thereunder, and the grantee shall be deemed to have immediately
and automatically surrendered all rights under this chapter. If so
directed by the City, the grantee shall remove its equipment from
the streets and other locations under City jurisdiction and within
the franchise area within 90 days after receipt of notice of the City
Council's declaration that the franchise has been forfeited.
C.
Notice
for the purpose of this section, shall be in writing and deposited
in the United States mail, postage prepaid, as certified or registered
mail, addressed to the grantee at its address last filed with the
City Council. Nothing contained in this chapter shall be construed
to limit the City Council from extending the deadlines set out in
this provision where there is reasonable cause to do so.
(Ord. 2016-06 § 1)
Any franchise granted pursuant to the provisions of this chapter
shall authorize and permit the grantee to engage in the business of
constructing, operating and providing a propane distribution system
in the franchise area and, for that purpose, to erect, install, construct,
repair, replace, reconstruct, maintain and retain in, on, over, under,
across, and along any public street, where the City's interest
therein will support the grant, and through easements which have been
dedicated for compatible uses and other property as may be necessary
and appurtenant to the propane distribution system; and in addition,
to use, operate and provide similar facilities or properties rented
or leased from other persons, including, but not limited to, any public
utility or other person permitted to have business in the City. All
installation, repair or maintenance activities shall comply with applicable
City standards and specifications. Any work involving excavation,
disturbance or closing of City streets shall be done under the terms
of a City encroachment permit and any other applicable requirements.
(Ord. 2016-06 § 1)
In the event that an action by the City Council under this chapter
requires prior public notice of a hearing, such notice shall be given
by publication of the notice of a public hearing pursuant to Government
Code Section 6061, at least 15 days prior to the public hearing, in
a newspaper of general circulation in the franchise area.
(Ord. 2016-06 § 1)
The City Council may from time to time by resolution or as part of the franchise agreement, establish franchise fees, as measured by a percentage of gross revenues of the grantee, for the franchise area, but in no event shall such franchise fees exceed the maximum percentage per year of the gross revenues of the grantee allowed by then applicable law. Any grantee granted a franchise under this chapter shall pay to the City during the term of such franchise the franchise fee established for the franchise area at the time the franchise is granted unless the franchise is later amended by resolution of the City Council. Payment by the grantee to the City shall be made annually at the same time the financial statement required by Section 5.13.120 is filed. The payments provided for in this section shall be in lieu of any occupation tax, license, tax or similar levy over which the City Council has control. The grantee and the City retain all rights under law regarding the passing through of changes in franchise fees and designation of franchise fees on a customer's bill.
(Ord. 2016-06 § 1)
The grantee shall file a financial statement for the preceding
fiscal year, which has been prepared by a certified public accountant
or by a public accountant, within 90 days after the expiration of
the grantee's fiscal year. The statement shall show in detail
the gross revenues of the grantee derived from the franchise granted
by the City Council. The right is reserved to the City of audit and
re-computation of any and all amounts paid under this chapter until
expiration of a period of three years following payment. Acceptance
shall not be construed as a release or as an accord and satisfaction
of any claim the City may have for further or additional sums payable
under this chapter or for the performance of any other obligations
under this chapter.
(Ord. 2016-06 § 1)
A.
Any
franchise granted under this chapter shall be exclusive or nonexclusive
for purposes of propane distribution within the franchise area.
B.
No privilege
or exemption shall be authorized or conferred by a franchise granted
under this chapter except those specifically prescribed in this chapter.
C.
Any
privilege claimed under a franchise by the grantee in any street,
or other public property, shall be subordinate to any prior occupancy
thereof for public purposes.
D.
A franchise
granted hereunder shall be a privilege to be held in personal trust
by the original grantee. It cannot be sold, transferred, leased, assigned,
or disposed of, in whole or in part, either by forced or involuntary
sale, merger, consolidation, or otherwise, without prior consent to
the City Council expressed in writing, and under the conditions therein
prescribed. The grantee shall file with the City Council within 30
days after any sale, transfer, assignment, or lease of the franchise
or any part thereof or any of the rights or privileges granted thereby,
written evidence of the transaction certified to by the grantee or
its fully authorized officers. Any proposed assignee must show financial
responsibility and must agree to comply with all of the provisions
of the chapter and provided further, that no consent or approval shall
be required for a transfer in trust, by mortgage, by security agreement,
or by other hypothecation as a whole, to secure an indebtedness, or
for a transfer required by operation of law.
E.
Any
right or power in, or duty impressed upon any officer, employee, department,
or board of the City shall be subject to transfer by the City Council
or by law to any other officer, employee, department, or board of
the City.
F.
The
grantee shall have no recourse whatsoever against the City for any
loss, cost, expense, or damage arising out of any provisions or requirements
of this chapter or its enforcement.
G.
Any
franchise granted pursuant to this chapter shall be subject to all
provisions, rules, regulations, and conditions prescribed by Federal,
State, County, and local law heretofore or hereafter enacted or established
during the term of any franchise granted hereunder, except that nothing
herein shall be so interpreted as to cause this chapter, or any franchise
granted pursuant to it, to be inapplicable or inoperative as a result
of the laws of another governmental agency or agencies.
(Ord. 2016-06 § 1)
A.
Nothing
in this chapter shall in any way or to any extent impair or affect
the right of the City to acquire the grantee's property either
by purchase or through exercise of the right of eminent domain, in
respect to any grantee.
B.
No franchise
granted under this chapter shall be given any value before any court
or other public authority in any action or proceeding brought by the
City in excess of the amount of the required filing fee and any other
sum paid by the grantee to the City for franchise at the time of granting.
C.
There
is reserved to the City every right and power which is required to
be reserved in this chapter or provided by any ordinance or resolution
of the City, and the grantee, by its acceptance of any franchise,
agrees to be bound thereby and to comply with any action or requirements
of the City in its exercise of such rights or power, enacted or established
before or after the effective date of the ordinance codified in this
chapter.
D.
The
City Council may do all things which are necessary and convenient
in the exercise of its jurisdiction under this chapter.
E.
Neither
the granting of any franchise under this chapter nor any of the provisions
contained in this chapter shall be construed to prevent the City from
granting any identical or similar franchise to any other person within
any other portion of the City.
F.
Neither
the granting of any franchise nor any provision herein shall constitute
a bar to the exercise of any governmental right or power of the City.
(Ord. 2016-06 § 1)
The grantee shall establish procedures to resolve consumer controversy
or charge arising from the operations of any grantee under this chapter.
(Ord. 2016-06 § 1)
A.
Upon
acceptance of any franchise, the grantee shall immediately initiate
action to obtain all permits, licenses, easements, variances, and
any other authorizations which are required or necessary in the conduct
of its business, including and any other permits, licenses and authorizations
to be granted by duly constituted regulatory agencies having or asserting
jurisdiction over the operation of the propane distribution system
or any associated facility, and the grantee shall proceed with due
diligence until all such matter are obtained. Copies of all applications
and communications submitted by the grantee to any other Federal or
State regulatory commission or agency having jurisdiction in respect
to any matters affecting propane distribution operation authorized
pursuant to its franchise, shall, upon request, also be submitted
to the City by the grantee.
B.
Within 90 days after obtaining all the required or necessary permits, licenses, easements, variances, and any other authorizations referred to in subsection A of this section, grantee shall commence construction and installation shall be pursued with reasonable diligence.
C.
Within
180 days after the commencement of construction and installation,
grantee shall proceed to offer initial service to customers, and the
completion of the construction and installation shall be pursued with
reasonable diligence.
D.
Failure to do any of the foregoing within the time specified except as provided in subsection E of this section shall be grounds for termination of the franchise.
E.
The
City Council in its discretion may extend the time for grantee, acting
in good faith, to do any act required hereunder. The time for commencement
of construction and installation, or the rendering of service to customers,
initially or thereafter, shall be extended or excused, as the case
may be, for any period during which grantee experiences delay or interruptions
due to any of the following circumstances if reasonably beyond its
control: necessary utility changes or rearrangements, governmental
or regulatory restrictions or requirements, labor strikes, lockouts,
war (declared).
(Ord. 2016-06 § 1)
A.
During
the planning and review of new residential subdivisions, the Planning
Department shall include the propane company or companies, in whose
territory the development is situated, in the list of referrals to
process the tentative map application. Nothing in this section shall
preclude the developer from proposing a specific company for propane
service, however this franchise process shall be followed and the
City is under no obligation to approve the developer's selection
if other companies submit an application.
B.
Any
dedication of a public utility easement shall include the use of the
easement for propane distribution pipelines.
(Ord. 2016-06 § 1)
A.
In the
event that the use of any part of the propane distribution system
is discontinued for any reason for a continuous period of 12 months,
or in the event the system or property has been installed in any street
or public place without complying with the requirements of this chapter,
or the franchise has been terminated, canceled, or has expired, the
grantee shall promptly, upon being given 10 days' written notice,
remove from the streets or public places all property of the system
other than any which the Director of Public Works may be permitted
to be abandoned in place. In the event of removal, the grantee shall
promptly restore the street or other area from which the property
has been removed to a condition satisfactory to the Director of Public
Works. The City may elect to have the entire underground system left
intact, remain the property of the grantee, and/or offered to another
propane company with a new franchise.
B.
Any
property of the grantee remaining in place 60 days after the termination,
forfeiture or expiration of the franchise shall be considered permanently
abandoned, unless the parties have agreed otherwise in writing. The
Director of Public Works may extend the time.
C.
Any
property of the grantee remaining in place shall be abandoned or left
intact in the manner the Director of Public Works prescribes. Upon
permanent abandonment of the property of the grantee in place, the
property shall become that of the City if so elected by the City and
the grantee shall submit to the Director of Public Works an instrument
in writing, to be approved by the City Attorney, transferring to the
City, the ownership of the property.
(Ord. 2016-06 § 1)
The grantee shall at its expense, protect, support, temporarily
disconnect, relocate in the same street or other public place, or
remove from the street or other place, any property of the grantee
when required by the Director of Public Works by reason of traffic
conditions, public safety, street vacation, freeway and street construction,
change or establishment of street grade, installation or sewers, drains,
water pipes, or any other type of structures or improvements by public
agencies; provided, however, that the grantee shall in all such cases
have the privileges and be subject to the obligations to abandon any
property of the grantee in place, as provided in this chapter.
(Ord. 2016-06 § 1)
Upon failure of the grantee to commence, pursue or complete
any work required by law or by the provisions of this chapter or by
its franchise to be done in any street or other public place, within
the time prescribed; and to the satisfaction of the Director of Public
Works, the Director shall give written notice to the grantee of such
failure. The notice shall be in writing addressed to the grantee's
business address and mailed with postage paid. After seven days following
the mailing of the notice, the Director of Public Works may at his
or her option cause the work to be done and the grantee shall pay
to the City the cost thereof in the itemized amounts reported by the
Director of Public Works to the grantee within 30 days after receipt
of the itemized report.
(Ord. 2016-06 § 1)
If required by the resolution or ordinance granting the franchise,
the grantee shall, concurrently with the filing of an acceptance of
award under any franchise granted under this chapter, file with the
City Clerk and shall at all times thereafter maintain in full force
and effect for the term of a franchise or any renewal thereof, at
grantee's sole expense, a corporate surety bond in a company
and in a form approved by the City Attorney in the amount established
by the City Council prior to or concurrently with the granting of
the franchise, renewable annually, and conditioned upon the faithful
performance of grantee, and upon the further condition that in the
event grantee shall fail to comply with any one or more of the provisions
of this chapter, or of any franchise issued to the grantee hereunder,
there shall be recoverable jointly and severally from the principal
and surety of the bonds any damages or loss suffered by the City as
a result thereof, including the full amount of any compensation, indemnification,
or cost of removal or abandonment of any property of the grantee as
prescribed hereby which may be in default, plus a reasonable allowance
for attorney's fees and costs, up to the full amount of the
bond; the condition to be a continuing obligation for the duration
of the franchise and any renewal thereof and thereafter until the
grantee has liquidated all of its obligations with the City that may
have arisen from the acceptance of the franchise or renewal by the
grantee or from its exercise of any privilege therein granted. The
bond shall provide that 30 days' prior written notice of intention
not to renew, cancellation, or material change be given to the City
Clerk. Neither the provisions of this section, nor any bond accepted
by the City pursuant hereto, nor any damages recovered by the City
thereunder, shall be construed to excuse faithful performance by the
grantee or limit the liability of the grantee under any franchise
issued hereunder or for damages, either to the full amount of the
bond or otherwise. The City Council may at any time waive or reduce
the amount of the bond provided for by this section.
(Ord. 2016-06 § 1)
A.
The
grantee shall indemnify the City, its officers, agents, directors,
and employees against all claims, demands, actions, suits, and proceedings
by others, against all liability to others, and against any loss,
cost, and expenses resulting therefrom including reasonable attorney's
fees, arising out of the exercise or enjoyment of its franchise irrespective
of the amount of the comprehensive liability insurance policy required
hereunder.
B.
The
grantee shall at all times during the existence of any franchise issued
hereunder maintain in full force and effect, at its own cost and expense,
a general comprehensive liability insurance policy, in protection
of the City, its officers, boards, commissions, agents, and employees,
in a company approved by the City Attorney and in a form satisfactory
to the City Attorney, protecting the City and all persons against
liability for loss or damage occasioned by the operations of grantee
under a franchise and for property damage in the amounts required
by resolution granting the franchise. A copy of the policy or policies
or certificates of insurance showing the existence of the insurance
coverage shall be filed by the grantee with the City Council.
C.
The
policies mentioned in the foregoing subsection shall name the City,
its officers, boards, commissions, agents, directors, and employees,
shall contain a contractual liability endorsement approved by the
City Attorney, and shall contain a provision that a written notice
of any cancellation or reduction in coverage of said policies shall
be delivered to the City Clerk 30 days in advance of the effective
date thereof.
(Ord. 2016-06 § 1)
A.
At all
reasonable times, the grantee shall permit any duly authorized representative
of the City to examine all property of the grantee, together with
any appurtenant property of the grantee situated within or without
the City, and to examine and transcribe any and all maps and other
records kept or maintained by the grantee or under its control which
deal with the operations, affairs, transactions, or property of the
grantee in relation to its franchise. If any maps or records are not
kept in the City or upon reasonable request made available in the
City and if the City Council determines that an examination of the
maps or records is necessary or appropriate, then all travel and maintenance
expense necessarily incurred in making the examination shall be paid
by the grantee.
B.
The
grantee shall prepare and furnish to the Director of Public Works
and the City Clerk, at the times and in the form prescribed by either
officer, reports with respect to its operations, affairs, transaction,
or property as may be reasonable, necessary or appropriate to the
performance of any of its officers in connection with the franchise.
C.
The
grantee shall at all times make and keep full and complete plans and
records showing the exact location of all propane distribution equipment
installed or in use in streets or other public places in the City.
(Ord. 2016-06 § 1)
The propane distribution system shall be installed and maintained
in accordance with the highest and best accepted standards of the
industry to the end that customers shall receive the best possible
service. All applicable State and Federal safety and operational requirements
shall be adhered to by the franchisee.
(Ord. 2016-06 § 1)
All matters provided in this chapter to be filed with the City,
unless provided otherwise in this chapter, shall be filed with the
City Clerk.
(Ord. 2016-06 § 1)
No person or entity in the existing service area of the grantee
shall be arbitrarily refused service; provided, however, that the
grantee shall not be required to provide service to any customer who
does not pay the applicable connection fee or monthly service charge
or any other charges as provided by this chapter or any resolution
granting the franchise. Grantee shall assure that access to propane
service is not denied to any group of potential customers because
of the income of the residents of the local area where the group resides.
(Ord. 2016-06 § 1)
