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HomeMy WebLinkAboutOrdinance No. 20170ORDINANCE NO. AN ORDINANCE GRANTING TO NORTHWEST NATURAL GAS COMPANY, A CORPORATION, A TWENTY ~ZO) YEAR NONEXCLUSIVE RIGHT AND FRANCHISE TO LAY, MAINTAIN AND OPERATE FACILITIES IN THE PUBLIC WAY WITHIN THE CITY OF EUGENE, OREGON; PROVIDING FOR THE PAYMENT OF COMPENSATION TO THE CITY; AND REPEALING ORDINANCE NO. ~ 8489, PASSED BY THE CITY GOUNGIL AUGUST 2l, ~ 919, AND APPROVED BY THE MAYOR SEPTEMBER 3,1919. THE CITY OF EUGENE DOES ORDAIN AS FOLLO~NSs Section 1. This Qrdinance shaft be known and may be cited as The Northwest Natural Gas Company Franchise Qrdinance. Section 7. Definitions. For the purpose of this Ordinance the following terms, phrases, words and their derivation shall have the meaning given herein. UVhen not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singularnumberinclude the plural number. The word "shall" is always mandatory and not merely directory. ~1} ~"City" is the City of Eugene, Qregon. ~2} "Company" is Northwest Natural Gas Company, the grantee of rights under this Franchise. ~3} "Council" is the City Council of the City of Eugene. ~4} "Person" is any person, f rm, partnership, association, corporation, company or organization of any kind. ~5} "Code" is the Eugene Code,1911, including all amendments thereto. ~6} "Public way" is any street, road, alley, right-of-way, pedestrian or bicycle easement or utility easement for public use that is controlled by City. ~l} "GIB format" is the format of electronic information, as established bythe City Engineer for incorporation into City's Geographic Information System ~GIS}. ~S} "Facilities" includes gas mains, pipes, boxes, reducing and regulation stations, laterals, conduits and connections, including service connections, together with all of the necessary or useful appurtenances for the transmission and distribution of gas to City and its inhabitants and to other customers and territory beyond the limits of City. ~9} "Gross revenues" means revenues earned by Company from operations within City, including but not limited to revenues from the sale andlor transportation of natural gas consumed within City and revenues earned from the use, rental or lease of operating facilities of Company other than residential-type space and water heating equipment, less the net writeoff of uncollectible accounts directly related to such revenues. Gross revenues shall not include: Qrdinance -1 ~a} Revenues paid directly by the United States of America or any of its agencies; fib} Proceeds from the sale of bonds, mortgages or other evidence of indebtedness, securities ar stocks; or ~c} Sales at wholesale by one utility to another when the utility purchasing the service is not the ultimate customer. Section 3. Grant of Authori~. City hereby grants to Companythe right and privilege to lay, maintain, and operate facilities in and under the public ways of City, subject to the terms of this Ordinance for a period of twenty years, This grant of authority shall not be exclusive, and City reserves the right to grant similar use of such public ways to any person or corporation at any time during the period of this Franchise. Section 4. Com Hance with A licab[e Laws and ordinances. Company shall at all times during the period of this Franchise, be subject to all lawful exercise of the police powerofCity, and to such reasonable regulation as City shall hereinafter by resolution or ordinance provide. Section 5. Conditions - ~ccu anc of Public Wa s. Company, subject to the prior approval of the City Manager or designee, and requirements of all applicable ordinances, regulations and adopted City policies, may make necessary excavations in public ways for the purpose of laying, operating and maintaining its mains, pipes and appurtenances. Company shall furnish and file with the City Engineer of City, which shall, to the extent technologically feasible, be in a data format prescribed by the City Engineer to allow integration into City's Geographic Information System ~G1S}, maps showing the location of all such mains, pipes, and appurtenances within City, both for its existing system and future plans for the system. The City Engineer may require such information, including ~GIS} format, or other drawings, surveys and plans, as deemed necessary to conform to the requirements of the Code and related administrative rules. Company shall bring maps up to date annually or upon such shorter notice as the City Engineer may reasonably require. City reserves the right to stop any work an a public way if the City Manager or designee determines that the work has a serious adverse effect on traffic flaw or endangers public safety. The right to stop work is absolute and cannot be challenged by Company even if Company's work hours andlortraffic control plans have been previously approved by City. Section ~. Removal and Restoration. Whenever any of Company's facilities shall unnecessarily inconvenience the public or private property owners, City may require the removal orchange of location of any such Ordinance - 2 facility. Any removal or relocation of facilities made forthe convenience of the public shall beat Company's expense. Whenever Company excavates or in any manner disturbs or interferes with any public way within City, Company shall restore the same as required by the Code. Section 7. Cit Free to Use Public U11a s. Nothing in this Ordinance shall be construed to prevent Cityfrom sewering, grading, paving, repairing, altering, or doing any work that it finds necessary or desirable in or on any public way. Should City find it in the public interest to permanently or temporarily remove or change the location of any of Company"s facilities, Company shall, upon request and reasonable notice from the Director of Public Works, do all necessary work at Company's sole cost and expense as promptly as the circumstances will reasonably permit. If Company fails so to do, City may cause such work to be done and Company shall pay all costs incurred by City in performing such work within thirty X30}days of the date City notifies Company of the cost thereof, Section S. Com an to Defend and Hold Cit Harmless. Company shall defend, indemnify and save harmless City, its employees, officers and agents, from any and all claims, damages, costs, liabilities, and expenses to which it or they may be subjected by reason of any act or neglect of Company, its agents or employees, or which may in any manner arise out of the construction, maintenance, operation or use of any property of Company in any public way. Section 9. Default and Termination. if Company fails to comply with or perform any of the requirements imposed on it bythis ordinance and City gives written notice specifying the nature of Company's default and demanding that such default be remedied within a reasonable time to be fixed in such notice, the rights and privileges granted bythis Ordinance may be terminated and annulled by City if Company fails to remedy its default within the time specif ed. Section ~4. Franchise Fee. As compensation to City for the franchise hereby granted, Company shall pay to City an amount equivalent to five percent ~b%} of Company's gross revenues. if the Code in effect at the time the revenue is earned does not allow payment of a franchise fee or business privilege tax or combined franchise fee and business privilege tax in an amount of five percent of gross revenues orsome greateramount, then the franchise fee shall be the maximum amount allowed by the Code; provided that, if the Code is amended thereafter to increase the allowable franchise fee, business privilege tax or combined franchise fee and business privilege tax, the increased rate, not to exceed five percent, shall be paid on all gross revenues earned after the effective date of the amendment. If Company agrees to pay any other city in Oregon a franchise fee that exceeds five percent of gross revenue, City may require Company to pay the same percentage of its gross ordinance - 3 revenue to City, so long as the Code allows payment of the higher percentage. Payment shall be made within forty-five X45}days following the end of each quarter of each calendar year. V`lithin forty-fve ~45~ days after the termination of this franchise, compensation shall be paid for the period elapsing since the close of the last quarter for which compensation has been paid. Upon thirky days' written notice by either party to the other, the basis far calculation of the franchise fee, the def ninon of gross revenues and other terms of this franchise shall be subject to renegotiation and redetermination atthe end of the first three- yearperiod ofthe franchise term and again at the end of each five-year period thereafter during the franchise term. The principles governing the renegotiation shall include, but not necessarily be limited to, making the franchise consistent with federal, state and local law in effect at the time of the renegotiation. Section 1 ~. Re orts b Com an . Company shall furnish to City with each quarterly payment of compensation a statement by an officer of Company showing the amount of gross revenues of Company for the quarter covered by the payment, computed on the basis set forth in Section 10, and the calculation of the payment for the quarter, including a description of and the amount for each exclusion from gross revenue, as allowed under Section 10. The books and records showing Company's gross revenues from the gas sales referred to in Section 10 shall always be open to inspection by City's Finance officer, or by any other authorized representative of City for the purpose of ascertaining the amount payable to City under Section 10, or to verify any statement or report submitted by Company pursuant to the provisions of this Section. City, or its authorized representative, shall have the right to audit Company's books and records to verify that the franchise fee has been correctly calculated and paid by Company. Company shall reimburse City for the reasonable costs of such audit if the audit discloses that Company has paid 95°/0 or less of the fee owing for the period of the audit. Company shall, upon request, furnish to City a list of all customers within the corporate limits of City who have contracted with Company for transportation and delivery of natural gas separate from the purchase of natural gas. This report shall include the names of all such customers and the volume of gas which was transported by Company on behalf of each customer for the period covered by the report. Section 12. Com an to Pa All Cit Taxes and Fees. Nothing contained in this franchise shall give Company any credit against any non- discriminatorybusiness tax oral valorem propertytax now or hereafter levied against real or personal property within City, or against any local improvement assessment imposed on Company, or against any permit fees or inspection fees required by the construction codes or other ordinances of City which are or may hereafter be adopted. Section ~ 3. Valuation for Eminent Domain. In the event City should desire to acquire the property of Company in City and ordinance W 4 adjacent territory by purchase, condemnation, or otherwise, the price to be paid by City shall exclude the value of thefranchise orother prerogatives of sovereigntygranted by City and connected with property of Campany in the City. Section 14. Abandonment. Company shall at all times maintain all of its facilities in a good state of repair, and shall subscribe to a utility notifcation and locate service. if Company ceases to make use of its facilities in the public way for the purposes authorized by this franchise ordinance for a continuous period of six months or more, with no intention of using those facilities in that location in the future, the facilities shall be deemed abandoned; no facilities shall be considered abandoned if they are reserved for future use. if facilities have been in the public way for more than one year without being used, they shall be presumed to be abandoned unless Company provides to City objective evidence of Company's intent to use the facilities within the next year. Company shall maintain records of all abandoned facilities and, upon receipt of a locate request, shall locate thaw facilities, labelling them as abandoned. Upon 60 days written notice to Campany at the address indicated in its acceptance of this ordinance, City may require Company to remove abandoned facilities and restore the public way, at Company's sole cost and expense. if Company fails to remove the facilities and restore the public way within the 60-day period, City may, at its option and in its sole discretion, remove the facilities from the public way and require Company to pay forthe full cost of removal and restoration of the public way. if Company removes the facilities from the public way but fails to restore the public way to its prior condition, City may complete the repairs and bill Company for the full cost thereof. Section ~ 5. Acce Lance b Com an . This Ordinance shall take effect thirty days after its adoption by the Council and approval ~ by the Mayor, provided that prior to the expiration of those thirty days, Company fles with City's Finance ~ffcer its written acceptance of this ordinance and the obligations it imposes. If no such acceptance is filed, this Ordinance shat! become null and void. Section ~ fi. Re eal of Ordinance 15489. From and after the effective date of this ordinance, ordinance ~ 8489 of the City of Eugene, passed by the Council on August 2l, ~ 919, and approved by the Mayor September 3,1919, shall be, and the same is hereby repealed. Passed by the City Council this day of Qc. Lod Pr , 1999 -- /O~- /~ City Recor er Approved by the Mayor this day of ~~~_, 1999 Mayor Ordinance - 5 ACCEPTANCE OF ORDINANCE NO.20170 TO THE HONORABLE MAYORAND CITY COUNCIL OF THE CITY OF EUGENE, OREGON: Northwest Natural Gas Company, a corporation, hereby unconditionally accepts Ordinance No. 20174 of the City of Eugene and all of the terms, provisions, and conditions thereof, said Ordinance No. 20170 being entitled: AN ORDINANCE granting to Northwest Natural Gas Company, a corporation, a twenty ~20~ year non-exclusive right and franchise to lay, maintain, and operate facilities in the public way within the City of Eugene, Oregon; providing for payment of compensation to the City; and ~ repealing Ordinance No. 18489, passed by the City Council August 27, 1979, and approved by the Mayor September 3,1979. which said Ordinance No. 20170 was duly passed and adopted by the Council and approved by the Mayor of said City of Eugene on the 11~" day of October, 1999. IN VIlITNESS VIJHEREOF said Northwest Natural Gas Company has caused the acceptance of said Ordinance to be signed by its SR. VICE-PRESIDENT & GENERAL COUNSEL, and its corporate seal to be affixed hereto and attested by its Secretary, this ~tn day of October, 1999. ATTEST: Secret ry NORTHWEST NATURAL GAS COMPANY By ~~ ~~~^ MARK S. DODSON SR.VICE-PRES. & GEN. COUNSEL STATE OF OREGON County of MULTNOMAH On this /S th day of October, 1999, personally appeared MARK S. DODSON who being duly sworn, did say that he is the SR. VICE-PRESIDENT & GENERAL COUNSEL of Northwest Natural Gas Company and that the seal affixed to the foregoing instrument is the corporate seal of said corporation and that said instrument was signed and sealed in behalf of said corporation by authority of its board of directors; and he acknowledged said instrument to be its voluntary act and deed. Before me: OFFICIAL SEAL LAURA L. KILLAM ~` NOTARY PUBLIC-OREGON N tary Public for Orego COMMISSION N0.318970 MY CnMMISSION EXPIRES JAN. 5, 2003 My Commission expires: i S ~-.~ SANDRA K. HART MANAGER Tel; 503.22b.4211 Fax: 5Q3.721.251b Tol! Free:1.8UU.422.4012 e-mail; s2h~gasco.cam.com October 19, ~ 999 Becky A. Koble City of Eugene Administrative Services 86o Uvest Park, Suite 300 Eugene, Oregon 9740 Dear Becky, 220 NW 2ND AVENUE PORTl.AND.OR 972119 H W H a t u r a I TE~ ff~~~[ ff/~~ !!/~~ (JJ~ ///~~ ~V~.iM~rTi~ www.nwnal~raLcom Enclosed please find N HIV Natural's Acceptance of Eugene ordinance No. 20~ lo. Please send me the City's signed copy ofthe final franchise agreement. l want to take this opportunity to thank all of you for working so diligently with us on this franchise, All of you brought a great deal of professionalism and intelligence to the process. You also ask great questions! NV11 Natural looks forward to continuing our working relationship with the City of Eugene. Please do not hesitate to contact me if you have any concerns of questions. Sincerely, /~~C GCS' Sandra K. Hart, Manager Risk Environment & Land SKH:jd Enclosure