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HomeMy WebLinkAbout1980-2438 GRANTING NATURAL AND/OR ARTIFICIAL GAS FRANCHISE TO CASCADE NATURAL GAS CORPORATION. ORDINANCE NO. 2438 AN ORDINANCE granting to Cascade Natural Gas Corporation, a Wash- ington corporation, its successors and assigns, a natural and/or artificial gas franchise and the right to construct, operate and maintain a gas plant and dis- tribution system in the City of Yakima, Washington, and prescribing the terms of such grant. • BE IT ORDAINED BY THE CITY OF YAKIMA: Section 1. Grant. That there is hereby granted by the City of Yakima, hereinafter referred to as "The City", to Cascade Natural Gas Corporation, a Washington corporation, its successors and assigns, hereinafter collectively referred to as the "Grantee", the right, privilege and franchise to construct, operate and maintain in, through and along the present and future streets of the City, and in, through and along the present and future alleys, parkways, public and other places of the City, mains, pipes, boxes, reducing and regulating stations, laterals, conduits and connections, including service connections, together with all, of the necessary,appurtenances, for the purpose of supplying gas for heat, power, light and other purposes, to the City and the persons and organizations therein, for the full term of this franchise, subject, however, to the limi- tations herein set forth and provided. Section 2. Term. The rights, privileges and franchises hereby granted to and conferred upon the Grantee shall, unless this franchise be sooner terminated as herein provided, extend for the full term of twenty-five (25) years from the date of the acceptance hereof by the Grantee, its successors or assigns. Section 3. Ordinance and Acceptance Constitute Contract. This ordinance and the written acceptance thereof by the Grantee shall constitute the contract between the City and the Grantee, and the same shall be binding upon and inure to the benefit of the successors and assigns of the Grantee under the limitations herein imposed. Section 4. Plant. The Grantee now has a gas making and distribution plant or system in the City. As additions to the gas distribution system are made, the Grantee shall submit a map of the location of its additional mains in the streets, alleys, parkways, and public places in the City, which .map shall be submitted to and filed with the Clerk of the City or other desig- nated official of the City, and such shall also apply to any material alteration of the present main system in use. In respect of any such additions, mains of suitable size shall be laid in the alleys 411 except where necessary to cross streets as determined by the Grantee, except for areas where there are no alleys or where it is otherwise impractical to serve customers from mains laid in alleys, in which event the alignment of the mains shall be determined by consulta- tion between Grantee and the Yakima City Engineer. This franchise shall cover natural and made-gas service, including by-product manufacture. Section 5. Laying Pipe. All additional mains of the Grantee shall be laid not less than two (2) feet below the surface of the streets and alleys of the City and shall be laid so as not to inter- fere with any city water main or branch thereof unless consented to by a proper city authority. All repairs and replacements entailed by the construction, operation and maintenance of said gas plant or system and enlargements thereof shall be as provided in Section 6. If any future improvement or construction by the City of sewers, water lines, streets, or alleys makes necessary changes in the loca- tion of gas mains, pipes, services, attachments, or appurtenances of the Grantee, the Grantee shall, upon reasonable notice by the • City and after reasonable evaluation of alternatives by the City in cooperation with the Grantee, at Grantee's expense move or change • such gas mains, pipes, services, attachments or appurtenances to conform to such public improvements. The City will avoid the need for such moving or changing whenever possible. In the event Federal, State, or other funds are available in whole or in part for utility relocating purposes, the City shall apply for such •funds and the Grantee will be reimbursed to the extent any such funds are actually obtained. 4 Section 6. Repairs and Replacements. All earth, materials, sidewalks, paving, crossings or improvements of any kind disturbed, injured or removed by the Grantee shall be fully repaired or replaced promptly by the Grantee, and the Grantee shall protect and save the City harmless from any loss or damages resulting therefrom. -2- Section 7. Excavations. Any excavations by the Grantee in any of the streets, alleys or public grounds within the limits of said City shall be done in accordance with reasonable rules, regulations, resolutions and ordinances now enacted or to be enacted 410 by the government of the City relating to excavations in streets, alleys and public grounds of said City. Such excavations shall be done under the direction and supervision of the official or officials of the City who, from time to time, may be invested with the supervision over the streets and alleys of the City. Section 8. Grantee to Make Extensions and Install Service Devices. The Grantee shall at all times during the term of this franchise install and maintain, at its own expense, such services and regulating devices, and meters, as may be necessary for supply- ing service to its consumers. The Grantee shall make all reasonable extensions for supplying service to consumers who are inhabitants of said City. The same shall be made, supplied and furnished under such reasonable rules and regulations as may be prescribed by the Washington Utilities and Transportation Commission, or such other agency of said State having jurisdiction over said matters. Section 9. Meters. All gas sold and distributed by the Grantee shall be by meter measurement, on the property of, or at, or in the building of, the consumer served, and the Grantee, its agents, licensees or employees shall have the right to read and inspect the gas meters at all reasonable times and to go on the premises therefor. The Grantee shall furnish good and reliable meters for the consumers, and the terms and conditions of furnishing and testing thereof shall be as prescribed by the Washington Utilities and Transportation Commission, or the regulatory body having juris- diction over such matters. 1410 Section 10. Grantee to Make Rules and Regulations. The Grantee, its successors and assigns may make such reasonable rules and regulations for the protection of its property, for the preven- tion of loss and waste, for safety purposes, for the conduct of business, and in respect of the sale or distribution of gas, as may be advisable and necessary from time to time, all in accordance -3- herewith andwith valid, applicable state laws, rules and regula- tions. Section 11. Acquisition by City. Said City may acquire the public utility, for the exercise of which this franchise is granted, III either by agreement or condemnation, and upon such purchase by the City, either by agreement or condemnation, no value of this franchise shall be taken into account in fixing the price to be paid by the City for such utility. Section 12. Compensation to City. The Grantee, its succes- sors or assigns in consideration of the granting of this franchise shall pay to said City two percent (Z%) of the gross receipts from the sale of gas in said City, such payments to be made annually within sixty (60) days from the first of the year for the amount due on account of the preceding year; and the managing agent of the Grantee, its successors or assigns, shall make and furnish to the City within said period a sworn statement as to the amount of such gross receipts. The Director of Finance of the City, or such other auditor as may be designated by the City Manager, shall be permitted to examine the books of the Grantee, its successors or assigns, at reasonable times and from time to time to determine or verify the amount of gross receipts and franchise fee. Section 13. Forfeiture of Franchise. In case of failure on part of the Grantee, its successors or assigns to comply with any of the provisions of this ordinance, or if the Grantee, its successors or assigns do or cause to be done any act or thing prohibited by or in violation of the terms of this ordinance, the Grantee, its successors or assigns shall forfeit all rights and privileges granted by this ordinance and all rights thereunder shall cease; provided that such forfeiture shall not occur or take effect until the City shall carry out the following proceed- ings and procedures: Before the City may proceed to forfeit this franchise pursuant to this section, the City shall first give notice of its intention to forfeit. The notice shall be given to the manager of Grantee (or its successor or assignee), and notice also shall be given to the mortgagee of any recorded mortgage, the trustee of any -4- recorded trust instrument, and to any other representative of investors of which there is . a filing on record in the office of the Yakima County Auditor. The notice may be given by either per - sonal service in the manner provided by law for the service of • summons, or by certified or registered mail with a return receipt requested, with full postage prepaid. The notice shall be in writing and set forth clearly and in detail the failure or viola- tion of Grantee constituting grounds for the forfeiture. The Grantee, its successor or assignee, shall have ninety (90) days after the receipt of notice by it within which to comply with the provisions of this franchise; and in the event such failure or violation continues beyond the ninety day period, the City, may bring an action in Yakima County Superior Court, or any other court of competent jurisdiction, to forfeit the franchise. If it is determined by that action that the Grantee, its successor or assignee, shall have failed to comply with this ordinance, or that Grantee, its successor or assignee, shall have done or caused to be done any act or thing prohibited by or in violation of the terms of this ordinance, and that the ground or grounds of forfeiture set forth in the notice had not been cured at the time of commencement of the legal action, then the City shall have the right to the entry by the court of its judgment declaring this franchise forfeited and assessing the costs of the action, includ- ing reasonable attorneys fees, against the Grantee, its successor or assignee; provided, however, that any such failure, default or violation shall not constitute grounds for forfeiture if due materially, substantially and reasonably to act of God, fire, flood, storm or other element or casualty, theft, war, disaster, strike, lockout, boycott, labor disturbance or disruption, governmental authority, •allocations, rules or regulations, shortages of materials or labor, shipping or transportation shortages, prevailing war or war prepara- tion induced conditions, or bona fide legal proceedings, beyond the control of Grantee, its successors or assigns. Section 14. Remedies to Enforce Compliance. The City, in addition to its right to forfeit this ordinance and franchise, as provided in Section 13, reserves and has the right to pursue any -5- • • . remedy to compel the Grantee, its successors or assigns to comply with the terms hereof and furnish the service herein called for, and the pursuit of any right or remedy by the City shall not prevent the City from thereafter declaring a forfeiture for any reason 111 herein stated, nor shall the delay of the City in declaring a for- feiture estop it from thereafter doing so, unless the action the City shall have prevented, caused or contributed materially to the failure to perform or to do the act or thing complained of. Section 15. Assignment of Franchise. This franchise is non- exclusive, and the same shall not be leased, assigned or otherwise alienated without the express consent of the City Council by ordi- nance passed for that purpose, and no rule of estoppel shall ever be invoked against the City in case it shall assert the invalidi- ty of any attempted transfer in violation of this section. Not- withstanding anything to the contrary herein contained, permission is hereby granted to the Grantee to mortgage .this franchise, together with the gas utility facilities and properties of the Grantee with- in the City to secure any legal bond issue or other bona fide indebtedness of the Grantee and express consent is hereby given to the mortgaging and assignment for security purposes of said franchise, facilities and properties by the Grantee to The Chase Manhattan Bank, N.A. and J.A. Payne, as Trustees, with no require- ment that the Trustees file any acceptance of this franchise and the liabilities and obligations of said Trustees shall in any event be limited to the properties and assets of the Company com- prising the trust estate. Section 16. Indemnity. The Grantee shall defend the City from, and indemnify and hold the City harmless against, any and 410 all claims, liabilities, judgments, costs, damages and expenses arising by reason of any act or omission of Grantee, or by any excavation, obstruction, erection, construction, maintenance or operation of any or all of the things mentioned in this ordinance. Section 17. Compliance with Ordinances. The Grantee shall comply during the term of this franchise with all present and -6- future statutes and regulations of the State of Washington and ordinances of the City pertaining to the gas business and the operation and maintenance of gas facilities. Section 18. Saving Clause. If any clause, sentence or sec- tion of this ordinance be held void by any court, it shall not affect the balance hereof. Section 19. Effective. This ordinance shall be published once in the official newspaper of the City and shall thereafter be submitted to a vote of the electors of the City at a special elec- tion to be held therein on the 4th day of November, 1980; and this ordinance shall become effective if approved by a majority of such electors voting on the question at said special election; provided that this ordinance shall be void and have no effect unless the Grantee shall within thirty (30) days after said election file with the City Clerk a written acceptance thereof.. PASSED BY THE CITY COUNCIL, signed and approved this / day of tbd,6 , 1980. . 'Jr e...;_/% pi Mayor ATTEST: City 410 -7- 61-1f- 3.- LI 3 ACCEPTANCE OF FRANCHISE Cascade Natural Gas Corporation, a corporation organized and existing under the laws of the State of Washington and doing business in the State of Washington, and the City of Yakima for itself, its successors and assigns, hereby accepts the fran- chise granted to it by the City of Yakima, a municipal corpora- tion of the State of Washington, by the Ordinance of said City bearing Number 2438 and entitled, "An Ordinance granting to Cascade Natural Gas Corporation, a Washington corporation, its successors and assigns, a natural and/or artificial gas franchise and the right to construct, operate and maintain a gas plant and distribution system in the City of Yakima, Washington, and prescribing the terms of such grant", which said ordinance was passed by the City Council of said City and signed and approved by the Mayor of said City on August 12, 1980, and approved by the electors of said Cityon November 4, 1980. DATED this/1 of AL20....44p7,34:,,,e, , 1980. CASCADE NATURAL GAS CORPORATION BY p e • Attest 4,da ts Secre ar