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HomeMy WebLinkAboutResolution 99-50 08/02/1999 . . .. RESOLUTION 99 _ 50 -- AUTHORIZING AND APPROVING THE NW NATURAL, INC., FRANCHISE AND PUBLIC WAY USE AGREEMENT WHEREAS, NW Natural, Inc., a Oregon Corporation, ("NW Natural") was granted a franchise to provide natural gas distribution services by Ordinance 4526, adopted and approved July 7, 1980; and WHEREAS, NW Natural, desires to extend the period oftime within which it may operate within the City of Springfield, using certain public ways of the City of Springfield to provide natural gas distribution services; and WHEREAS, NW Natural and the City have agreed upon the terms of such continued use and upon the compensation to be paid for use ofthe public ways, all as more particularly set forth in a certain Franchise and Public Way Use Agreement, dated as of June 30, 1999, and agreed that such terms shall replace and succeed those set forth in Ordinance 4526 as ofthe effective date ofthat agreement; and WHEREAS, the City Manager has submitted the NW Natural Franchise and Public Way Agreement to the council for its review and approval in the form of a draft agreement dated June 30, 1999, (the "Draft Agreement"), a copy whereof, marked Exhibit A, is attached hereto and incorporated by reference herein, accompanied by certain material reviewing and commenting upon the Draft Agreement, and has recommended that the Draft Agreement be approved; and ' WHEREAS, the Council has reviewed the terms of the Draft Agreement and is fully informed as to the contents thereof, and has determined that it is in the public interest to enter into the Draft Agreement; ; NOW THEREFORE, BE IT RESOLVED, that the common Council of the City of Springfield finds and determines that it is in the public interest to enter into the NW Natural Franchise and Public Way Agreement and the NW Natural Franchise and Public Way Agreement is hereby approved; and BE IT FURTHER RESOLVED, that the terms ofthe NWNatural Franchise and Public Way Use Agreement shall replace and succeed all of the provisions of the franchise granted by Ordinance 4526, as ofthe effective date ofthe agreement; and . . . ~ Resolution 99-50 page 2 BE IT FURTHER RESOLVED, that the City Manager is hereby authorized and directed to execute the NW Natural Franchise and Public Way Agreement substantially in the form of the Draft Agreement, with such changes or amendments thereto as he shall determine to be necessary to effectuate the direction of the Council and give effect to the terms of the Agreement, such determination to be evidenced by his execution of the NW Natural Franchise and Public Way Agreement. Adopted by the Common Council of the City of Springfield, Oregon, this 2nd August , 1999. day of Adopted by a vote of ~ for and ~ against. ~1A~ Mayor ATTEST: ~~ City Recorder REVIEWED & APPHOVED ~~~~ -) \~ DATE: / /22 I cr~ I OFFICE OF CITY ATTORNEY . . . Re,solution 99-50 page 3 FRANCHISE AND PUBLIC \V A Y USE AGREEMENT THIS AGREEMENT entered into by and between NW Natural, hereinafter referred to as the Grantee, and the CITY OF SPRINGFIELD, a municipal corporation organized and existing under the laws of the State of Oregon, hereinafter referred to as "Grantor"or "City" \VITNESSETH: Section 1 Definitions. 1.1 As used in this Agreement all words and phrases shall have their customary usage and meaning, provided, however, that the terms defined in Section 4.600 of the Springfield Municipal Code shall have the meaning set forth therein, and the following tem1S shall be defined as follows: 1.1.1 "City" shall mean the City of Springfield and all areas within its corporate boundaries, including as those boundaries may be changed from time to time in the future. 1.1.2 "Council" shall mean the common council of the City as set forth in Article VII of the Springfield Charter. 1.1.3 "Person" shall include an individual, corporation, association, firm, or any other business entity having the legal authority to do business within the state of , Oregon. 1.2 As used herein, the singular number may include the plural and the plural number shall include the singular. 1.3 Unless expressly provided to the contrary herein or in the Springfield Municipal Code, any action authorized or required to be taken by the City pursuant to this Agreement may be taken by the Councilor by the City Manager or any official or agent designated by the Councilor the City Manager. Section 2 Riehts Granted. 2.1 Subject to the conditions and reservations set forth herein, and the provisions of the Springfield Municipal Code, City grants to Grantee the non-exclusive right, privilege and power to construct, operate, and maintain a natural gas distribution system providing the services described herein on, in and under the public ways of the City, and to provide such services to the City and its residents, to the extent pem1itted by law; and further grants to Grantee such other rights, privileges and powers as may be necessary or incident to the provision of such natural gas distribution as defined herein. I:\FRANCHIS\NWNA T\NWNA TPW,WPD June 30, 1999 Page 10f 7 . . . Re'solution 99-50 page 4 ') ') Grantee shall, before using or occupying any public way, obtain the consent of the City for such occupation or use by securing such pennit as shall be required by the provisions of Chapter 3 of the Springfield Municipal Code. 2.3 The rights granted herein shall not confer on Grantee any right, title or interest in any public way beyond that expressly con ferred by the provisions of this Section 2, nor shall it confer any right or privilege to use or occupy any other property of the City or any other entity. Section 3 3.1 Reserved Riehts. The City reserves the right, without limitation, to: 3.1.1 construct, install, maintain and operate any public improvement, work or facility in, on, over or under the public ways; 3.1.2 perfoml or authorize or direct the performance of any work thatthe City may find desirable or convenient in, on, over or under any public way; or 3.1.3 vacate, alter, or close any public way. 3.2 Whenever the City shall perform or cause or permit to be performed, any work in the public way or the vicinity oft~e public way where such work may disturb or interfere with Grantee's facilities, the City shall, or shall require its permittee, to notify, in writing, Grantee sufficiently in advance of such contemplated work to enable Grantee to take such measures, including removal or relocation of such facilities, as may be deemed necessary to protect such facilities, at its own expense. 3.3 Whenever the City shall vacate any public ways for the convenience or benefit of any person or governmental agency and instrumentality other than the City, Grantee's rights of use, replacement, and maintenance shall be preserved as to any of its facilities then existing in such public way. Section 4 Care of Facilities. 4.1 The facilities of the Grantee shall at all times be maintained and operated in a safe, substantial and workmanlike manner. 4.2 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 the public health, safety and welfare, or for the orderly development of the City. The city may amend and add to such specifications from time to time. I:\FRANCHIS\NWNA T\NWNA TPW.WPD June 30, 1999 Page 2 of7 Rel3olution 99-50 page 5 . Section 5 Activities in the Public Way. 5.1 The Grantee shall obtain such pennits as may be required by law prior to commencing the construction, extension or relocation of any of its facilities in the public way. 5,2 Prior to commencing any construction, extension or relocation of facilities in the public way, the Grantee shall file drawings, in such form as may be acceptable to the City Engineer, showing the location of existing facilities and facilities to be constructed maintained, or relocated. Following completion of such construction, extension, or relocation the Grantee shall file drawings and maps, in such fonn as may be acceptable to the City Engineer, showing the facilities as actually constructed, extended, or relocated. 5.3 Except in an emergency, the Grantee shall make no excavation, opening, or other intrusion into the public way without having first obtained such pennit as may be required by law. 5.4 In perfonning all work in the public way, the Grantee shall, at all times, conduct such work in accordance with the Standard Construction Specifications ofthe City as they shall exist from time to time, proyided that such City Specifications are not inconsistent with the requirements of the United States Department of Transportation (USDOT) or the Federal Energy Regulatory Commission (FERC). . 5.5 If at any time the Grantee shall make any opening, excavation or other intrusion into the public way, the Grantee shall promptly restore the public way to the same condition in which it was prior to the opening, excavation or intrusion, all in accordance with City Standard Construction specifications as then in effect. 5.6 Should the Grantee fail to promptly make such restoration or fail to make such restoration in accordance with City Standard Construction Specifications, the City may, at its election upon written notice to the Grantee, cause such restoration to be made, at Grantee's expense. Section 6 Location and Relocation of Facilities. 6.1 All facilities ofthe Grantee shall be placed so that they do not unreasonably interfere with the use by the City and the public of the public way, and in accordance with the specifications of the City. 6.2 The City may require, in the public interest, the removal or relocation, temporarily or permanently, of facilities maintained by the Grantee in the public ways of the City. The Grantee shall remove and relocate such facilities within 120 days after receiying notice in writing to do so from the City. The cost of such removal or relocation shall be paid by the Grantee, provided, however, that when such removal or relocation is required for the . I:\FRANCHIS\NWNA T\NWNA TPW.WPD June 30, 1999 Page 3 of7 Resolution 99-50 page 6 . convenience or benefit of any person, govemmcnt agency or instrumcntality other than the City, Grantee shall be entitled to reimbursement for the reasonable cost thereof from such person, agency or instrumcntality, to the extent pemlitted by law. Section 7 Compensation. 7.1 As compensation for the privileges granted herein, the Grantee shall pay to the City an amount equal to five percent (5%) of the Grantee's gross revenue collected from its customers for gas consumed within the City. Gross revcnue shall mean revenues received by Grantee from operations within the City, including revenues from the use, rental or lease of operating facilities of the utility other than rcsidential heating and water heating equipment less net uncollectibles. Gross revenue shall not include revenues paid by the United States of America or any of its agencies, sales at wholesale by one public utility to another when the utility purchasing the service is not the ultimate customer, or proceeds from the sale of bonds, mortgages or other evidence of indebtedness, securities or stocks. 7.2 The compensation required by this section shall be due and payable quarterly, and shall be paid to the City by the 451h day following the end of each quarter of each calendar year. . 7.3 The Grantee shall furnish to the City, with each payment of compensation required by this section, a written statement, showing the amount of gross reyenue of the Grantee within the City for the period covered by the payment computed on the basis set out in 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 discoyery 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. 7.4 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 ofthis Agreement 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 8 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. Under 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. . I:\FRANCHIS\NWNA T\NWNA TPW.WPD June 30, 1999 Page 4 of7 Re'solution 99-50 page 7 . Section 9 Safety Standards and Work Specifications. 9.1 The facilities of the Grantee shall at all times be maintained in a safe, substantial and workmanlike manner 9.2 For the purpose of carrying out the proyisions 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 10 Books of Account and Reports. 10.1 The Grantee shall keep accurate books of account at an office in Oregon for the purpose of detennining the amounts due to the City under Section 7 of this Agreement. The City may inspect the books of account at any time during business hours and may, not more frequently than bi-annually, audit the books from time to time or require the Grantee to provide an audit report prepared by an independent accounting firm, at Grantee's expense. The Council may require periodic reports from the Grantee relating to its operations and revenues within the City, provided that the Grantee shall not be obliged to disclose proprietary information. . Section 11 Collection Facilities. 11.1 The Grantee may maintain facilities in the City where its customers may pay their bills for service during normal business hours. Section 12 Supplyin~ Maps upon Request. , ,12.1 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, in such form as is acceptable to the City Engineer, showing the location of the facilities of the Grantee in the City. Section 13 Indemnification. 13.1 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 and privileges hereby granted. Section 14 Assi~nment of Ri~hts. 14.1 All rights and privileges granted and duties imposed by this Agreement shall be binding upon and inure to the benefit of the successors, legal representatives and assigns of the Grantee. Grantee shall notify the City of any sale or transfer of majority control of its plant or system at the time such information is filed with any regulatory agency. .. I:\FRANCHIS\NWNA T\NWNA TPW. WPD June 30, 1999 Page 5 of7 . . . Resolution 99-50 page 8 Section 15 Termination of Aereement for Cause. 15.1 Upon the failure of the Grantee, after ninety (90) days' notice and demand in writing, to perfonn promptly and completely each and every teml, condition or obligation imposed upon it under or pursuant to this Agreement, the City may tenninate this Agreement, subject to a court review of the reasonableness of such action. Section 16 Remedies. 16.1 All remedies and penalties under this Agreement, including tennination of the Agreement, 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 Agreement, including tennination of the Agreement, are not exclusive, and the City reserves the right to enforce the 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 teml, condition or obligation imposed upon the Grantee by or pursuant to this Agreement. A specific waiver of a particular breach of any teml, condition or obligation imposed upon the Grantee by or pursuant to this Agreement 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 17 Term. 17.1 This agreement shall become effective as of July 1, 1999, and shall expire on June 30,2009, unless extended or modified by the parties hereto in writing. 17.2 Either party, by written notice delivered not less than 90 days, nor more than one , year, in advance of the termination date ofthis agreement, may request renewal, extension or modification of the Agreement. 17.3 Either party; by written notice delivered not less than 90 days, nor more than 180 days prior to the fifth anniversary of the effective date of this Agreement may request that the parties meet and confer with respect to changes to the Agreement. Unless otherwise agreed by the parties, any such changes agreed upon shall become effective on the fifth anniversary date of this Agreement. Section 18 Complete Aereement. 18.1 This Agreement represents the whole agreement between the parties and shall supersede all other agreements and understandings, whether oral or in writing, between the parties with respect to the subjects covered by this agreement. This Agreement may not be modified except by a writing executed by both parties to the Agreement. I:\FRANCHIS\NWNA T\NWNA TPW.WPD June 30, 1999 Page 6 of7 . . . Resolution 99-50 page 9 IN WITNESS WHEREOF, the parties, by their duly designated representatives have executed this Agreement as of this I st day of July, 1999. FOR THE GRANTEE: /t(~ /~ By: Mark S. Dodson Title: Sr. Vice-President Public Affairs & General By: Title: REVIEWED & APPROVED ~~;X~~~ OFFICE OF CITY ATTORNEY I:\FRANCHIS\NWNA T\NWNA TPW.WPD June 30, 1999 FOR THE CITY: ~A-, t~ Title: !!try tP(A7VAeG'L-- Counsel Page 70f7