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Ord 2133 - Nw Natural Franchise COUNCIL BILL NO. 1578 ORDINANCE NO. 2133 AN ORDINANCE GRANTING A NON-EXCLUSIVE GAS UTILITY FRANCHISE TO NORTHWEST NATURAL GAS COMPANY, FIXING TERMS, CONDITIONS AND COMPENSATION THEREUNDER, REPEALING ORDINANCE NO. 1442 AND DECLARING AN EMERGENCY. THE CITY OF WOODBURN ORDAINS AS FOLLOWS: Section 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 WOODBURN 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 located on or under any street, bridge or public place within the City. (f) "Person" includes an individual, corporation, association, firm, partnership and joint stock company. (g) "Public place" includes any 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. Page 1 Council Bill No. 1578 Ordinance No. 2133 (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 required to be taken by the City may be taken by the Councilor by an official or agent designated by the Council. Section 2: Riqhts Granted. Subject to the conditions and reservations contained in this ordinance, the City hereby grants to NORTHWEST NATURAL GAS COMPANY, a corporation, the 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 Bridqes and Public Places bv 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. Section 4. Duration. This franchise is granted for a period of ten (10) years from and after the effective date of this ordinance. Section 5. Franchise Not Exclusive. This franchise is not exclusive, and shall not be construed as a limitation on the City in: Page 2 Council Bill No. 1578 Ordinance No. 2133 ,_...._._._._,--~- (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. Section 6. Public Works and Improvements Not Affected bv 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, 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 injury 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. Section 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. Under no circumstances shall the Grantee be liable for an interruption or failure of service caused by Page 3 Council Bill No. 1578 Ordinance No. 2133 act of God, unavoidable accident or other circumstances beyond the control of the Grantee through no fault of its own. Section 8: Safetv Standards and Work Specifications. (1) The facilities of the Grantee shall at all times 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 file 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. All work done within the corporate limits of the City shall be done in the location approved by the City Engineer and in accordance with plans and specifications approved by the City Engineer. The City Engineer's approval of the plans and specifications may include conditions and the conditions shall be binding on the Grantee. Such construction work shall be done in a safe manner subject to the approval of the City Engineer and in accordance with requirements of applicable Federal and State laws and City ordinances. All work done shall be subject to the rejection or correction requirements of the City Engineer and subject to the City Engineer's approval. The City may require the Grantee to obtain a permit before commencing the construction, extension or relocation of any of its gas mains. Section 10: Street Excavations and Restorations. (1) Subject to the provisions of this ordinance and under direction of the City Engineer, the Grantee or its subcontractor may make necessary excavations for the purpose of constructing, installing, maintaining and operating its facilities. In all circumstances pertinent to this agreement, any action by the Grantee's subcontractors shall be the responsibility of the Grantee. Any subcontractor of the Grantee shall be bound to the requirements of this agreement. Except in emergencies, 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 shall give notice to the City by telephone, electronic data transmittal or other appropriate means as soon as is practicable after the commencement of work performed under emergency Page 4 Council Bill No. 1578 Ordinance No. 2133 conditions. The City may require the Grantee to obtain a permit before excavating. (2) When any excavation is made by the Grantee, the Grantee or its subcontractor shall promptly restore the affected portion of the street, bridge or public place to the same condition in compliance with any permits issued by the City and any specifications, requirements and regulations of the City in effect at the time of such restoration. All work done shall be subject to the rejection or correction requirements of the City Engineer's approval. If the Grantee or its subcontractor fails to restore promptly the affected portion of the 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. 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 to do so 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 franchise 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. Gross revenues 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, revenues derived from the sale or Page 5 Council Bill No. 1578 Ordinance No. 2133 transportation of gas supplied under an interruptible tariff schedule, 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 City shall retain the right, as permitted by Oregon Law, to charge a privilege tax in addition to the franchise fee set forth herein based on the gross revenues of the company, payable on the same terms and conditions as the franchise fee itself. Such privilege tax may be implemented during the term of this franchise provided that, if enacted after the effective date, the City shall provide the Grantee with sixty (60) days' notice prior to the effective date of the ordinance enacting the tax. (3) The compensation required by this section shall be due for each calendar quarter, or fraction thereof, within thirty (30) days after the close of such calendar quarter, or fraction thereof. Within thirty (30) days after the termination of this franchise, compensation shall be paid for the period elapsing since the close of the last calendar quarter for which the compensation has been paid. (4) 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 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. (5) 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 occurring prior thereto, nor shall the acceptance by the City of any such payments preclude the City from later establishing that a larger amount was actually due, or from collecting any balance due to the City. 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 Page 6 Council Bill No. 1578 Ordinance No. 2133 books from time to time. The Council may require periodic reports from the Grantee relating to its operations and revenues within the City. Section 14: Classification of Fees. The City Council determines that any fees imposed by this franchise are not taxes subject to the property tax limitations of Article XI, Section 11 (b) of the Oregon Constitution. Section 15: Collection Facilities. The Grantee may maintain facilities in the City where its customers may pay their bills for gas service during normal business hours. Section 16: Supplvinq Maps Upon Request. 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 charge and on a current basis, maps showing the location of the gas mains of the Grantee in the City. Section 17: 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 injury 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. Section 18: No Recourse Aqainst Citv. Grantee shall have no recourse whatsoever against the City or its officials, boards, commissions, agents or employees for any loss, cost, expense or damage arising out of any provision or requirement of this franchise or because of the enforcement of this franchise or in the event this franchise or any part thereof is determined to be invalid. Section 19: Sale or Assiqnment 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, which Page 7 Council Bill No. 1578 Ordinance No. 2133 consent shall not be unreasonably withheld, and that all of the provisions shall inure to and bind the successors and 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 20: Termination of Franchise for Cause. Upon the willful failure of the Grantee, after sixty (60) days' notice and demand in writing, to 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 21: Reneqotiation of the Franchise. If the State of Oregon or the PUC amends or adopts a state statute or administrative rule that would affect a term, condition, right or obligation under this agreement, either party may reopen the franchise agreement at any time with regard to such term, conditions, right or obligation in order to address the change required or allowed by the new or amended state statute or administrative rule. Section 22: Remedies Not Exclusive. When Requirement 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. Section 23: Prior Ordinance Repealed. Ordinance No. 1442 is hereby repealed. Page 8 Council Bill No. 1578 Ordinance No. 2133 Section 24: Acceptance. 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 in the form attached hereto as Exhibit "A", and if the Grantee fails so to do, this ordinance shall be void. Section 25: Emerqencv Clause. This ordinance being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist and this ordinance shall take effect immediately upon passage by the Council and approval by the Mayor, and shall be valid for a term of franchise as stated in Section 4 and provided that the Grantee files its acceptance as stated in Section 24. Approved as to form: Date City Attorney APPROVED: Len Kelley, Mayor Passed by the Council August 22, 1994 Submitted to the Mayor August 23, 1994 Approved by the Mayor August 23, 1994 Filed in the Office of the Recorder I I ~ August 23, 1994 ATTEST: !!/a~ -L -:sf- M~~yJfennant', City Recorder City of Woodburn, Oregon Page 9 Council Bill No. 1578 Ordinance No. 2133 EXHIBIT "A" ACCEPTANCE OF FRANCHISE WHEREAS, the City of Woodburn, Oregon, under date of , passed Ordinance No. 2133 entitled as follows: AN ORDINANCE GRANTING A NON-EXCLUSIVE GAS UTILITY FRANCHISE TO NORTHWEST NATURAL GAS COMPANY, FIXING TERMS, CONDITIONS AND COMPENSA TIONTHEREUNDER, REPEALING ORDINANCE NO. 1442 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 unconditionally accept the terms, conditions and provisions of Ordinance No. 2133 and agrees to be bound thereby and comply therewith. IN WITNESS WHEREOF, the Northwest Natural Gas Company has caused this instrument to be executed by its officer as below subscribed this day of ,1994 NORTHWEST NATURAL GAS COMPANY By: Printed Name: Title: Received by the City of Woodburn this day of ,1994. CITY OF WOODBURN By: Printed Name: Title: ~.