Loading...
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. t t � 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 .. .. .,. .._...... w.,. ...._ ..+. .n...w ..R1,......JY.s.....i-..z. ._. .,._.. .,.=,s»_... +. s_n,, a:.. _ w.s........&. r_s:3r.:•..:5. 'c.:tE.1:aF.= °.2't.,}s11.::auS=ES* 4 - 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 IM::.. ,. ,_.,., .i: .,. .... ..:a.... .. �:.... - .:::. -_... ..4-_, ... ..�....:...3. .• _. ._ ... .,.z.t.F_,u-_,._.7' k.wx.fvx'xh r'.e"i".:.�- , i• �. 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 �.., � _ n ....., . ,_ -. 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