Ordinance No. 93-29 CITY OF TIGARD,OREGON
ORDINANCE NO.93-_;JJ
AN ORDINANCE GRANTING A NON-EXCLUSIVE GAS UTILITY FRANCHISE TO NORTHWEST
NATURAL GAS COMPANY, AND FIXING TERMS, CONDITIONS AND COMPENSATION OF SUCH
FRANCHISE AND REPEALING ALL ORDINANCES AND PARTS OF ORDINANCES IN CONFLICT
HEREWITH,AND DECLARING AN EMERGENCY.
WHEREAS,the ten-year franchise for the operation of a gas utility within the City is now before the City
Council for renewal,the Council believes that the franchise should be renewed under the terms and conditions
set forth in Exhibit"A",attached hereto,and by this reference made a part hereof.
THE CITY OF TIGARD ORDAINS AS FOLLOWS:
SECTION 1. The terms and conditions of the attached franchise agreement,Exhibit A,are hereby approved
and adopted as part of this ordinance as if specifically set forth.
SECTION 2. The Mayor is authorized and directed to sign the attached agreement on behalf of the Council.
SECTION 3. Because of the need to have stable gas service and a stable revenue flow to the City from
franchise fees,an emergency is declared and this ordinance shall take effect upon its passage.
SECTION 4. The City Council determines that the fee imposed by this franchise is not a tax subject to the
property tax limitations of Article XI,Section 11(b)of the Oregon Constitution.
SECTION b. This ordinance shall replace and repeal the prior franchise with Northwest Natural Gas
/ Company,Ordinance No.82-22 adopted on May 10,1982. In addition,it is agreed by the City
t and Grantee that the terms of Ordinance No.82-22 remained in effect from May 10,1992 until
the effective date of this Ordinance.
PASSED: By U''A n 6 n O'Svote of all Council members present after being read by number and
title only,this at.`t' day of Or-&L i. 1993.
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Catherine Wheatley,City Recor er
APPROVED: This 116- day of 0(k)bVt.l
rald R. Edwards,Mayor
Approved as to fo :(
/ V
ty Attorn y
!o/�co/93
COrdinance No.93- d�!
f
Page 1
EXHlB1T"A"
A FRANCHISE AGREEMENT BETWEEN THE CITY OF TIGARD AND NORTHWEST
NATURAL GAS COMPANY,A CORPORATION.
'on 1: Definitions and Explanations
(1) As used in this ordinance.
(a) "Bridge"includes a structure erected within the City to facilitate the crossing
of a river, stream,ditch, ravine or other place, but does not include a culvert.
(b) "City"means the City of Tigard and the area within its boundaries,including
its boundaries as extended in the future.
(c) "Council"means the legislative body of the City.
(d) "Grantee"means the corporation referred to in Section 2 of this ordinance.
(e) "Gas Mains"includes all gas transmission and distribution facilities looted on
or under any street, bridge or public place within the City.
(fl "Person"includes an individual,co rporation,association,firm,Partnership and
joint stock company.
f (g) "Public Place" includes any dedicated or city-owned park, place or grounds
within the City that is open to the public but does not include a street or
bridge.
(h) "Street" includes a street, alley, avenue, road, boulevard, thoroughfare or
Public highway within the City, but does not include a bridge.
(2) As used in this ordinance,the singular number may include the plural and the plural
number may include the singular.
(3) Unless otherwise specified in this ordinance,any action authorized or
uired to be
taken by the City may be taken by the Council or by an official or agent desisted
by the Council
COrdinance No.93-
Page 1
Sectiga-2., Rights Granted
Subject to the conditions and reservations contained in this ordinance, the City hereby
C grants to NORTHWEST NATURAL GAS COMPANY,a corporation,the nonexclusive right,
privilege and franchise to:
(1) Construct,maintain and operate a gas utility system within the City.
(2) Install,maintain and operate on and under the streets and bridges and public places
of the City, facilities for the transmission and distribution of gas to the City and its
inhabitants and to other customers and territory beyond the limits of the City; and
(3) Transmit, distribute and sell gas.
Section 3: Use of Bridges and Public Places by Grantee.
(1) Before the Grantee may use or occupy any bridge or public place,the Grantee shall
first obtain permission from the City to do so and shall comply with any special
conditions the City desires to impose on such use or occupation.
(2) The compensation paid by the Grantee for this franchise includes compensation for
the use of bridges and public places located within the City as authorized.
fSection 4• Duration.
. h.
This franchise is granted for a period of ten (10)years from and after the effective date of
j this ordinance.
Section 5: Franchise Not Exclusive.
This franchise is not exclusive, and shall not be construed as a limitation on the City in:
(1) Granting rights,privileges and authority to other persons similar to or different from
those granted by this ordinance.
(2) Constructing, installing, maintaining or operating any City-owned public utility.
Ordinance No. 93-
Exhibit "A"
Page 2 of 8
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gn 6 Public Works and Im rovements Nod Affected by Franchise.
The City reserves the right to:
(1) Construct,install,maintain and operate any public improvement,work or facility;
(2) Do any work that the City may find desirable on,over or under any street,bridge or
public place.
(3) Vacate,alter or close any street, bridge or public place.
(4) Whenever the City shall excavate or perform any work in any of the present and
future streets,alleys and public places of the City,or shall contract,or issue permits,
E for such excavation or work where such excavation or work may disturb Grantee's gas
mains,pipes and appurtenances,the City shall,in writing,notify Grantee sufficiently
in advance of such contemplated excavation or work to enable Grantee to take such
measures as may be deemed necessary to protect such gas mains, pipes and
} appurtenances from damage and possible inconvenience or Wury to the public. In
any such case,the Grantee,upon request,shall furnish maps or drawings to the City
or contractor, as the case may be, showing the approximate location of all its
structures in the area involved in such proposed excavation or other work.
(5) Whenever the City shall vacate any street or public place for the convenience or
benefit of any person or governmental agency and instrumentality other than the
City, Grantee's rights shall be preserved as to any of its facilities then existing in
such street or public place.
^lion 7 Continuous Service.
The Grantee shall maintain and operate an adequate system for the distribution of gas in
the City. The Grantee shall use due diligence to maintain continuous and uninterrupted
24-hour a day service which shall at all times conform at least to the standards common in
the business and to the standards adopted by state authorities and to standards of the City
which are not in conflict with those adopted by the state authorities. tinder no
circumstances shall the Grantee be liable for an interruption or failure of service caused by
act of God,unavoidable accident or other circumstances beyond the control of the Grantee
through no fault of its own.
Ordinance No. 93-
Exhibit"A"
Page 3 of 8
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cd n Safety 8tandardagand Work Specifications.
s
(1) The facilities of the Grantee shall at all tames be maintained in a safe, substantial
and workmanlike manner.
(2) For the purpose of carrying out the provisions of this section,the City may provide
such specifications relating thereto as may be necessary or convenient for public
safety or the orderly development of the City. The City may amend and add to such
specifications from time to time.
section 9: Control of Construction.
The Grantee shall We with the City maps showing the location of any construction,
extension or relocation of its gas mains in the streets of the City and shall obtain from the
City approval of the location and plans prior to commencement of the work. The City may
require the Grantee to obtain a permit before commencing the construction, extension or
relocation of any of its gas mains.
`p Section 10: Street Excavations and Restorations.
(1) Subject to the provisions of this ordinance, the Grantee may make necessary
excavations for the purpose of constructing,installing,maintaining and operating its
( facilities. Except in emergencies, and in the performance of routine service
connections and ordinary maintenance,prior to making an excavation in the traveled
portion of any street,bridge or public place, and,when required by the City, in any
untraveled portion of any street,bridge,or any public place,the Grantee shall obtain
from the City approval of the proposed excavation and of its location. Grantee shat
give notice to the City by telephone,electronic data transmittal or other appropriate
means prior to the commencement of service or maintenance work and as soon as is
practicable atter the commencement of work performed under emergency conditions.
(2) When any excavation is made by the Grantee,the Grantee shall promptly restore the.
affected portion of the street,bridge or public place to the same condition in which
it was prior to the excavation. The restoration shall be in compliance with
specifications,requirements and regulations of the City in effect at the time of such
restoration. If the Grantee fails to restore promptly the affected portion of a street,
bridge or public place to the same condition in which it was prior to the excavation,
the City may make the restoration,and the cost thereof shall be paid by the Grantee.
C.:
Ordinance No. 93-
Exhibit W
s Page 4 of 8
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Section 11: Location and Relocation of Facilities.
(1) All facilities of the Grantee shall be placed so that they do not interfere unreasonably
with the use by the City and the public of the streets,bridges and public places and
in accordance with any specifications adopted by the City governing the location of
facilities.
(2) The City may require, in the public interest, the removal or relocation of facilities
maintained by the Grantee in the streets of the City, and the Grantee shall remove
and relocate such facilities within a reasonable time after receiving notice so to do
from the City. The cost of such removal or relocation of its facilities shall be paid by
the Grantee,but when such removal or relocation is required for the convenience or
benefit of any person, governmental agency or instrumentality other than the City,
Grantee shall be entitled to reimbursement for the reasonable cost thereof from such
person, agency or instrumentality.
Section 12: Compensation.
(1) As compensation for the hranchise granted by this ordinance, the grantee shall pay
to the City an amount equal to three percent(3%) of the gross revenue collected by
the Grantee from its customers for gas consumed within the City. " Gross revenue"
as used in this ordinance shall be deemed to include any revenue earned within the
City from the sale of natural gas after deducting from the total billings of the Grantee
the total net write off of uncollectible accounts and revenues derived from the sale or
transportation of gas supplied under an interruptible tariff schedule. Gross revenue
shall include revenues from the use,rental or lease of operating facilities of the utility
other than residential-type space and water heating equipment. Gross revenues shall
not include proceeds from the sale of bonds, mortgage or other evidence of
indebtedness, securities or stocks, sales at wholesale to a public utility when the
utility purchasing the service is not the ultimate consumer,or revenue paid directly
by the United States of America or any of its agencies.
(2) The compensation required by this section shall be due for each calendar half year,
or fraction thereof, within sixty(60)days after the close of such calendar half year,
or fraction thereof. Within sixty (60) days after the termination of this franchise,
compensation shall be paid for the period elapsing since the close of the last calendar
year for which compensation has been paid.
(3) The Grantee shall furnish to the City Finance Director with each payment of
compensation required by this section a written statement,under oath, executed by
an officer of Grantee showing the amount of gross revenue of the Grantee within the
City for the period covered by the payment computed on the basis set out in
subsection (1) of this section. The compensation for the period covered by the
statement shall be computed on the basis of the gross revenue so reported. If
controversy arises as to the amount of gross revenue within the meaning of this
ordinance, the amount of such gross revenue as determined by the Public Utilities
Ordinance No. 93-
Exhibit "A"
Page 5 of 8
Commissioner of Oregon after examination of the Grantee's records shall be deemed
the correct amount. If the Grantee fails to pay the entire amount of compensation
due the City through error or otherwise, the difference due the City shall be paid by
the Grantee within fifteen (15)days from discovery of the error or determination of
the correct amount. Any overpayment to the City through error or otherwise, shall
be offset against the next payment due from the Grantee.
(4) Acceptance by the City of any payment due under this section shall not be deemed
to be a waiver by the City of any breach of this franchise
shall the acceptance by the City of any such occurringprior thereto,nor
establishing that a larger amount was actually due, or frompreclucollectde the City from later
due to the City. @ anY balance
(5) The City shall retain the right,as permitted by Oregon law,tochars e a rivile a tax
in addition to the franchise fee set forth herein based on the P • g
company, gross revenuesOf the
(6) The City shall have the right to change the percentage
Section 12 (1) at any time during the life of this Agreement provided
set forth i e
such notice in a■�riting st least t3'one hundred eighty ded it has made
date of any change, f (180) days prior to the effective
Section 13: Books of Account and Reports
The Grantee shall keep accurate books of account at an office in Oregon for the purpose of
determining the amounts due to the City under section 12 of this ordinance. The City may
inspect the books of account at any time during business hours and may audit the books
j from time to time. The Council may require periodic reports from the Grantee relating to
its operations and revenues within the City.
Section 14• Collection Facilities.
The Grantee may maintain facilities in the City where its customers may
a th
gas service during normal business hours. Y pay exr bills for
Section 15: SupAlvine Maps Upon Reauest
The Grantee shall maintain on file, at an office in Oregon, maps and operational data
Pertaining to its operations in the City. The City may inspect the maps and data at any
time during business hours. Upon request of the City,the Grantee shall furnish to the City,
without
in charge a d on a current basis, maps showing the location of the gas mains of the
ty.
Ordinance No. 93-
Exhibit "A"
Page 6 of 8
k1.'on 1� Indemnification.
The Grantee shall indemnify and save harmless the City and its officers, agents, and
employees from any and all loss,cost and expense arising from damage to property and/or
miury to, or death of, persons due to any wrongful or negligent act or omission of the
Grantee, its agents or employees in exercising the rights, privileges and franchise hereby
granted.
h&eggon 17: Sale or Assignment of Franchise
The Grantee shall not during the term of this franchise sell,assign,transfer or convey this
franchise without first obtaining the consent of the City Council by ordinance,and that
obtaining such consent all of the provisions shall inure to and bind the successors upon
assigns
of the Grantee,and whenever the Northwest Natural Gas Company shall be mentioned in
this ordinance,it shall be understood to include such successors or assigns in interest of the
Northwest Natural Gas Company as shall have been so consented to by the City Council.
Section 18: Termination of Franchise for Cause
Upon the willful failure of the Grantee,after thirty(30)days'notice and demand in writing,
perform promptly and completely each and every term, condition or obligation imposed
upon it under or pursuant to this ordinance,the City may terminate this franchise, subject
to Grantee's right to a court review of the reasonableness of such action.
Section 19: Remedies Not Exclusive When Reguirement Waived
All remedies and penalties under this ordinance,including termination of the franchise,are
cumulative, and the recovery or enforcement of one is not a bar to the recovery or
enforcement of any other such remedy or penalty. The remedies and penalties contained
in this ordinance, including termination of the franchise, are not exclusive and the City
reserves the right to enforce the penal provisions of any ordinance or resolution and to avail
itself of any and all remedies available at law or in equity, Failure to enforce shall not be
construed as a waiver of a breach of any term, condition or obligation imposed upon the
Grantee by or pursuant to this ordinance. A specific waiver of a particular breach of any
term, condition or obligation imposed upon the Grantee by or pursuant to this ordinance
shall not be a waiver of any other or subsequent or future breach of the same or of any
other term, condition or obligation, or a waiver of the term, condition or obligation itself.
Ic
Ordinance No. 93-
Exhibit "A"
Page 7 of 8
Section 20 Acceutance,
The Grantee shall,within thirty(30)days from the date this ordinance takes effect,file with
the City its written unconditional acceptance of this franchise, and if the Grantee fails so
to do, this ordinance shall be void.
PASSED by the Common Council this d Zo day of 1993.
Signed and approved by the Mayor thiday of_ LG 0—b�C4, 1993.
Ma
ATTEST:
D
rder
Ordinance No. 93-
Exhibit"A"
Page 8 of 8
a m.:., a z , . z
ACCEPTANCE OF FRANCHISE
WHEREAS,the City of Tigard,Oregon,under date of October 26, 1993 passed Ordinance
No. 93-29, entitled as follows,to wit:
An Ordinance granting a non-exclusive gas utility franchise to Northwest
Natural Gas Company, and fixing terms, conditions and compensation of
such franchise, repealing all ordinances and parts of ordinances in conflict
herewith and declaring an emergency.
NOW THEREFORE, the undersigned, Northwest Natural Gas Company, the Grantee
named in said ordinance,does for itself and its successors and assigns accept the terms,
conditions, and provisions of Ordinance No. 93-29 and agrees to be bound thereby and
comply herewith.
IN WITNESS WHEREOF,the Northwest Natural Gas Company has caused this instrument
to be executed by its officer as below subscribed this Third day of November, 1993.
ATTEST:.::: NORTHWEST NATURAL GAS COMPANY
,ef27
By
Bruce B. Samson, Sr.Vice President
Received by the City of Tigard
this day of . 1993.
ACCEPTANCE OF FRANCHISE
WHEREAS, the City of Tigard, Oregon, under date of . 1993
passed Ordinance No. . entitled as follows, to wit: f
An Ordinance granting a non-exclusive gas utility franchise to Northwest
Natural Gas Company,and fixing terms,conditions and compensation of such
franchise,repealing all ordinances and parts of ordinances in conflict herewith,
and declaring an emergency.
NOW THEREFORE, the undersigned, Northwest Natural Gas Company, the Grantee
named in said ordinance, does for itself and its successors and assigns accept the terms,
conditions, and provisions of Ordinance No. and agrees to be bound thereby and
comply horewith.
IN WITNESS WHEREOF,the Northwest Natural Gas Company has caused this instrument
to be executed by its officers as below subscribed this day of . 1993.
NORTHWEST NATURAL GAS COMPANY
By
Received by the City of Tigard
this day of . 1993.
t