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HomeMy WebLinkAboutOrdinance 1871AN ORDINANCE GRANTING TO AVISTA CORPORATION A FRANCHISE IN THE CITY OF CENTRAL POINT, OREGON In the Matter of the Application of AVISTA CORPORATION for a franchise to locate, construct, operate and maintain plants and works, and all necessary or desirable appurtenances thereto for the manufacture, purchase, transmission and distribution of gas along and across rights of way and present and future public properties. GRANTING A FRANCHISE TO AVISTA CORPORATION, FOR THE CONSTRUCTION, OPERATION, AND MAINTENANCE OF NATURAL GAS FACILITIES WITHIN THE CITY OF CENTRAL POINT, OREGON WHEREAS, Avista Corporation, a corporation organized under the laws of the State of Washington (hereinafter referred to as "Grantee"), has heretofore filed with the City of Central Point, State of Oregon, (hereinafter referred to as "Grantor" or the "City"), its written application for a Franchise to locate, construct, operate and maintain such plants and works and all necessary or desirable appurtenances thereto for the manufacture, purchase, transmission and distribution of gas under, along and across all of Grantor's rights of way and public property in the City of Central Point, State of Oregon, and WHEREAS, the Grantor duly fixed the time and place for hearing said application and due and timely notice of said hearing on such application was given pursuant to statute and ordinance, and hearing on said application having been held as prescribed by law, and the Grantor having been fully advised in the premises and having determined that it is in the public interest to grant such Franchise in the manner herein set forth; and WHEREAS, Grantee is engaged in the business of providing utility services to customers consistent with applicable laws and regulations, and Grantor has determined it is in the interest of persons and businesses in this jurisdiction to have access to Grantee's services, NOW, THEREFORE, THE PEOPLE OF THE CITY OF CENTRAL POINT, OREGON, DO ORDAIN AS FOLLOWS: That Avista Corporation, its successors and assigns, is hereby granted a Franchise for the purposes identified below and subject to the following terms and conditions: Grantor hereby grants to Grantee, to the extent of the City's right to allow Grantee's use and occupancy thereof, its successors and assigns, the right, power, privilege and authority to construct, or otherwise acquire, and to own, maintain, equip, and operate plants and works, and all necessary or desirable appurtenances thereto, for the production, purchase, transmission and distribution of gas, including the right to construct, lay, maintain, operate, extend, renew, remove, replace, repair, use and operate a gas distribution system, in, under, upon, over, across, and 1 - Ordinance No. MI(041306) along the present and future public properties within the present or any future corporate limits of the Grantor, including streets, rights of way, bridges and other structures, for the purpose of transporting, distributing and selling gas (with the right and privilege to make such connections with said pipes as will enable the Grantee to supply gas) for heating, lighting, power and any and all domestic, commercial, and industrial purposes, within and through the City and to the City and its inhabitants, and to other persons, firms, entities or municipal corporations. II. TERM The rights, privileges and franchise hereby granted to, and conferred upon the Grantee shall, unless this Franchise be sooner terminated as herein provided, extend for a term of 10 years from the date of written acceptance hereof by the Grantee. Upon written notice from the Grantor, at any time on or after five years from the date of acceptance of this franchise, Grantee agrees to engage in good faith negotiations of the terms and conditions of this franchise. III. TRIMMINGIREMOVAL OF TREES The right of Grantee to maintain its lines, facilities and appurtenances shall include the right, as exercised in Grantee's sole discretion, to utilize an integrated vegetation management program, including the right to cut, trim or remove any and all trees, brush or shrubs growing in, on, or hanging over any City roads, rights of way, streets, alleys or City property that interfere with or may interfere with Grantee's facilities, including wires, poles, conduits or other apparatus of Grantee, its successors and assigns. Grantee shall notify the City of such tree removal during the normal construction permitting process, and prior to the grant of a permit or commencement of work under such permit. IV. RIGHT OF EXCAVATION For the purpose of carrying into effect the privileges granted hereunder, Grantee is authorized at any time to make all necessary excavations in the streets, alleys, roads, rights of way and public grounds within the franchised area, but such excavation shall be carried out subject to city -established requirements concerning work in the right-of-way with reasonable dispatch and with as little interference with or inconvenience to the rights of the public as may be feasible. Grantee shall restore all streets, alleys, roads, rights of way and public grounds to a standard as agreed upon for conditions of safety and use after excavation. In case any obstruction caused by Grantee shall remain longer than seven (7) days after notice to remove it, or in case of neglect by Grantee to safeguard any dangerous places, Grantor may remove such obstruction or safeguard such dangerous places at the expense of Grantee. In the event of an emengencv the emergency repair work may proceed without permits however, the grantee shall within five (5) working days after repairs are completed meet with representatives of the Grantor to determine if permits are required. 2 - Ordinance No.' amt (041306) V. NON-INTERFERENCE WITH EXISTING FACILITIES All gas facilities shall be constructed and laid in such a manner as not to interfere with the use by the City and the public of the rights-of-way or with any public or private irrigation or drain ditches, sewers, water mains, conduits, sidewalks, paving or other public improvements or utility structures. Further, if any of the Grantee's facilities unreasonably interfere with the construction, installation, repair or relocation of any right-of-way or City facility, Grantee's facility shall be removed or replaced in coordination with the City. Any and all removal or replacement shall be at Grantee's sole expense. should Grantee fail to remove, adjust, or relocate its facility by the date established by the City, the City may cause such removal, adjustment, or relocation through the use of qualified contractors, and the expense thereof shall be paid by Grantee, including all costs and expenses incurred by the City due to Grantee's delay. VI. NECESSARY CONSTRUCTION/MAINTENANCE BY GRANTOR The laying, construction, operation and maintenance of Grantee's lines and appurtenances authorized by this Franchise shall not preclude the Grantor, its agents or its contractors, from blasting, grading, excavating, or doing other necessary road work contiguous to the said lines and facilities of Grantee, provided that Grantee shall be given not less than five (5) days' notice of said blasting or other work. Any liability for damages by the Grantor or its contractor shall be limited to the extent of the City's liability under the Oregon Tort Claims Act. VII. CONDUCT OF GRANTEE'S BUSINESS The Grantor shall have the right to make and enforce reasonable rules and regulations pertaining to the conduct of the Grantee's business. Service shall be supplied to the Grantor and its inhabitants in accordance with the Grantee's rules and regulations and tariffs filed or hereafter filed with the appropriate regulatory body of this State having jurisdiction over the Grantee. VIII. VACATION OF PROPERTIES BY GRANTOR If, at any time, the Grantor shall vacate any road, right of way or other public property which is subject to rights granted by this Franchise, to the extent permitted by law, such vacation shall be subject to the reservation of a perpetual easement in favor of Grantor for the purpose of operating and maintaining the facilities of the Grantee and other public utilities. Such easement shall also expressly prohibit any use of the vacated properties which will interfere with Grantor's ability to provide Grantee's full enjoyment of its rights under this Franchise. Grantor shall also continue to permit Grantee to operate and maintain its facilities in or on the vacated property consistent with and subject to this Franchise. When practicable, Grantee shall assist in the 3 - Ordinance No.-qM (041306) location and description of gas facilities contained in the vacated parcel facilitating the assignment of the perpetual easement to the correct property. Grantor shall give Grantee not less than 60 days notice of any action or proposal to vacate any road right-of-way or other public property. IX. RELOCATION OF FACILITIES If the City determines in its reasonable exercise of discretion that the public interest requires the Grantee's facilities be moved, Grantor shall notify Grantee of any intended or expected requirement or request to relocate Grantee's facilities as early as practicable, but not later than 120 days prior to any such relocation when the requirement or request could have been foreseen by that date. Grantor shall endeavor to cause any such relocation to be consistent with any applicable long term development plan or projection of Grantor or approved by Grantor. If, at any time, the Grantor shall cause or require the alteration or the improvement (the "Improvement") of any road, highway or right-of-way wherein Grantee maintains facilities subject to this franchise by grading or regrading, planking or paving the same, changing the grade, altering, changing, repairing or relocating the same or by constructing drainage or sanitary sewer facilities, the Grantee upon written notice from the Grantor shall, with all convenient speed, change the location or readjust the elevation of its system and other facilities so that the same shall not interfere with such work and so that such equipment and facilities shall conform to such new grades or routes as may be established. The relocation of Grantee's facilities shall be at the sole expense of Grantee unless: (i) the Improvement was not paid for solely by public funds, in which case the Grantor agrees to make reasonable efforts to facilitate an agreement between the adjoining property owners or developers to pay for the costs of relocation; or (ii) Grantor has failed to provide the required advance notice, in which case any and all excess costs caused by the failure to provide such notice shall be paid by Grantor. X. PRESERVATION OF GRANTOR'S RIGHTS TO CONTROL The Grantor, in granting this Franchise, does not waive any rights which it may now have or may hereafter acquire with respect to road rights of way or other property of Grantor under this Franchise, and this Franchise shall not be construed to deprive the Grantor of any such powers, rights or privileges which it now has or may hereafter acquire to regulate the use of and to control the Grantor's roads, rights of way and other public property covered by this Franchise. XI. EMERGENCY REMOVAL BY GRANTOR The Grantor reserves the right to remove any such distribution lines, equipment and related appurtenances ("Grantee's facilities") herein provided for in case of general conflagration or in other cases of extreme emergency, where there is neither the time nor the opportunity for Grantee to perform such work. Grantor shall use reasonable care in the exercise of such 4- Ordinance No. SQ -Ll (041306) emergency powers. Grantee shall make every effort to provide company personnel on site during such removal. Grantor shall indemnify and hold harmless the Grantee, its successors and assigns, against any and all property damage, personal injury, death, or other liability to third parties sustained as a result of the negligent exercise of such reserved emergency powers, and shall, at its expense, restore Grantee's facilities removed as a result of such exercise. X11. NON-EXCLUSIVE FRANCHISE This Franchise shall not be deemed to be an exclusive Franchise. It shall in no manner prohibit the Grantor from granting other franchises of a like nature or franchises to other public or private utilities under, along, across, over and upon any of Grantor's roads, rights of way or other property of Grantor subject to this Franchise and shall in no way prevent or prohibit the Grantor from constructing, altering, maintaining or using any of said roads, rights of way, drainage structures or facilities, irrigation structures or facilities, or any other property of Grantor or affect its jurisdiction over such property to make all necessary changes, relocations, repairs, maintenance, etc., insofar as the Grantor may deem fit. XIII. FRANCHISE FEES AND COSTS As compensation for the franchise granted by this Ordinance, the Grantee shall pay to the City an amount equal to five (5) per cent of the gross revenue collected by the Grantee from its customers for gas consumed within the city. Gross revenue shall be computed in accordance with state regulations. Gross revenue is the revenue collected by Grantee from its customers for gas consumed within the City Limits minus: the total net write-off of uncollectible accounts; revenues derived from the sale or transportation of gas supplied under an interruptible tariff schedule; revenues paid directly by the United States or any of its agencies, revenues paid by any city owned facilities; sales of gas at wholesale by Grantee to any public utility or public agency where the public utility or public agency purchasing gas is not the ultimate customer; and gross revenues or any proceeds from the sale of bonds, mortgage or other evidence of indebtedness, securities or stocks. Said franchise fee may be adjusted at such time as Oregon statutes permit such an increase/decrease and an additional agreement is reached between the parties setting the commencement date of any fee adjustment. The compensation required by this section shall be due monthly. In the event of termination of this Franchise at any time prior to the expiration of term mentioned in Section II, the Grantee shall pay the compensation provided for herein to the City within sixty (60) days following such termination, with such payment to cover the period of time for which compensation therefore has not been paid to the City. 5 - Ordinance No. 1871 (041306) XIV. EQUALITY OF FRANCHISE FEES AND COSTS In the event that Grantor charges or imposes upon Grantee any fees, taxes or other costs in connection with the issuance, maintenance, existence, continuation, or use of the franchise, or the public rights-of-way governed hereby, granted pursuant to this document, then Grantor shall impose reasonably equivalent charges, fees, taxes or costs upon any other franchisee in the same business or competing with Grantee. XV. FORFEITURE If Grantee shall willfully violate or fail to comply with any of the provisions of this Franchise through willful and unreasonable neglect or willful and unreasonable failure to heed or comply with any notice given Grantee under the provisions of this grant, then Grantee shall forfeit all rights conferred hereunder and this Franchise may be revoked or annulled by the Grantor; provided, however, the Grantor shall give ninety (90) days' written notice of its intention to revoke or annul the Franchise during which period Grantee shall have the opportunity to remedy any breach. XVI. EXPANSION OF GRANTEE'S FACILITIES Any facilities and appurtenances in streets, alleys, rights of way and public places, incidental to the franchise system, that have been, or are at any future time acquired, leased, or utilized in any manner by Grantee are thereupon to be deemed authorized by and shall be subject to all provisions of this Franchise. XVII. CHANGE OF BOUNDARIES OF GRANTOR Any subsequent additions or modifications of the boundaries of the Grantor, whether by annexation, consolidation or otherwise, shall be subject to the provisions of this Franchise as to all such areas. Grantor shall notify Grantee of the precise scope of any change of boundaries as required by state law prior to such change becoming effective. XIII. PRIOR FRANCHISES SUPERSEDED This Franchise shall update and supersede all prior gas franchises for the above stated purpose heretofore granted to Avista Corporation or its predecessors, by Grantor, or its predecessors, and shall affirm, authorize and ratify all prior installations authorized by permits or other action not previously covered. XIX. ASSIGNMENT OF FRANCHISE Grantee, its successors and assigns, shall have the right to sell, transfer or assign this Franchise. All provisions, conditions, regulations and requirements herein contained shall be 6 - Ordinance No. 141A (041306) binding upon and inure to the benefit of the successors and assigns of the parties hereto. Grantee shall send written notice of such an assignment to the City within ninety (90) days of its effective date so that the city shall have an opportunity to consent to the assignment though such consent shall not be unreasonably withheld. XX. EFFECT OF INVALIDITY The Franchise is granted pursuant to the laws of the state of Grantor relating to the granting of such rights and privileges by Grantor. If any article, section, sentence, clause, or phrase of this Franchise is for any reason held illegal, invalid, or unconstitutional, such invalidity shall not affect the validity of the Franchise or any of the remaining portions. The invalidity of any portion of this Franchise shall not abate, reduce, or otherwise affect any obligation required of Grantee. XXI. FRANCHISE AS CONTRACT This Franchise shall have the effect of and shall be a contract between Grantor and Grantee and shall be the measure of the rights and liabilities of the Grantor as well as of Grantee. XXIL INDEMNITY Grantee agrees to defend, indemnify and hold harmless the Grantor, its appointed and elected officers and employees, from any and all liabilities, claims, causes of action, losses, damages and expenses, including costs and reasonable attorneys fees, that the Grantor may sustain, incur, become liable for, or be required to pay, as a consequence of or arising from the construction, installation, maintenance, condition or operation of the Grantee's equipment or facilities, or appurtenances thereto, connected with this franchise, that now or may hereafter be upon, under, over, in, across or along, the highways, roads, alleys, bridges or other public ways or places of the Grantor; provided, however, that this indemnification provision shall not apply to the extent that said liabilities, claims, damages, losses and so forth were caused by or result from the negligence of the Grantor. Grantor agrees to defend, indemnify and hold harmless the Grantee, its officers and employees, from any and all liabilities, claims, causes of action, losses, damages and expenses, including costs and reasonable attorneys fees, that the Grantee may sustain, incur, become liable for, or be required to pay, as a consequence of or arising from the negligent acts or omissions of the Grantor, its officers, employees or agents, provided, however, that this indemnification provision shall not apply to the extent that said liabilities, claims, damages, losses and so forth were caused by or result from the negligence of the Grantee. Liability of the Grantor is limited to the extent of the City's liability under the Oregon Tort Claims Act. Grantee agrees to have and keep in place a reasonable level of liability insurance and shall furnish proof of coverage to the Grantor on an annual basis. 7 - Ordinance No. i_" (041306) Grantee shall keep accurate books of account for the purpose of determining the amounts due to the City under Section XIII of this ordinance. Upon reasonable notice, allowing time to secure the records of Grantee relating to all accounts and matters covered by this franchise, the City may inspect and copy said records and accounts during business hours and also may audit said records and accounts from time to time. Any audit shall be at the expense of the City. Each franchise fee payment shall be accompanied by a report showing how the franchise fee was calculated, including the gross revenues earned in the City for that month. XXIV. ACCEPTANCE OF FRANCHISE Grantee shall notify Grantor in writing of its acceptance of this Franchise within thirty (30) days of the approval of this Franchise by Grantor. Passed by the City Council and signed by me in authentication of its passage this �3day of 2006. - Mayor Hank Williams Approved by me this /� day of 2006. L Mayor Hank Williams 8 - Ordinance No. � �?j 1 (041306)