HomeMy WebLinkAboutCascade Natural Gas - Ordinance 3784 s '
ORDINANCE NO. r 0
AN ORDINANCE of the City of Pasco, Washington, Granting
Cascade Natural Gas Corporation, a Washington Corporation, its
Successors, Grantees and Assigns the Nonexclusive Right, Privilege,
Authority and Franchise to Construct, Operate, Maintain, Remove, Replace,
and Repair Existing and Future Pipeline Facilities, Together with Equipment
and Appurtenances Thereto, for the Transportation and Distribution of
Natural Gas Within and Through the City of Pasco
WHEREAS, Cascade Natural Gas Corporation, a Washington Corporation (hereinafter
"Grantee")has applied for renewal of a nonexclusive Franchise to operate and maintain a natural
gas distribution system, together with all required and necessary appurtenances for the purpose
of supplying gas for heat, power, light and other purposes to customers within and through the
City of Pasco, a Washington Municipal Corporation(hereinafter the"City"); and,
WHEREAS, the State statutes and City ordinances authorize the City to grant
nonexclusive Franchises; NOW THEREFORE,
THE CITY COUNCIL OF THE CITY OR PASCO, WASHINGTON, DO ORDAIN
AS FOLLOWS:
Section 1. Definitions.
For the purposes of this Franchise, the following terms, phrases, words and their
derivations shall have the meaning given herein. When not inconsistent with the context, words
used in the present tense include the future,words in the plural include the singular, and words in
the singular include the plural. Words not defined shall be given their common and ordinary
meaning.
1.1 Construct or Construction shall mean excavating, installing, assembling new
Facilities and removing, altering, replacing and repairing existing pipeline(s) and/or facilities.
1.2 Effective Date shall mean the 1st day of January, 2006, or such date after
approval, passage, and legal publication of this Ordinance and acceptance by the Grantee occurs
and upon which the rights, duties and obligations shall come in effect and the date from which
the time requirements for any notice,extension and/or renewal will be measured.
1.4 Facilities shall mean the Grantee's existing and future distribution system, lines,
valves, mains, appurtenances, and all other facilities necessary for the purpose of transportation
and/or distribution of Grantee's product(s).
1.5 Franchise shall mean this franchise and any amendments, exhibits, or appendices
to this franchise.
1.6 Franchise Area means the area within the jurisdictional boundaries of the City,
including any areas annexed by City during the term of this Franchise, in which case the annexed
area shall become subject to the terms of this Franchise.
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1.8 Maintenance or Maintain shall mean examining, testing, inspecting, repairing,
maintaining and replacing the Facilities or any part thereof as required and necessary for safe
operation.
1.9 Public Ways shall mean any highway, street, alley, utility easement (unless their
use is otherwise restricted), or other public Rights-of-way as encompassed by RCW 47.24.020
and RCW 47.52.090 under the jurisdiction and control of the City.
1.10 Operate or Operations shall mean Grantee's use of the Facilities for the delivery,
distribution and handling of natural gas within and through the Franchise Area.
1.11 Rights-of-Way means the surface and the space above and below streets,
roadways, highways, avenues, courts, lanes, alleys, sidewalks, easements, rights-of-way and
similar public ways located within the Franchise Area.
Section 2. Grant of Authority.
2.1 Pursuant to RCW 35A.47.040, the City hereby grants to Grantee, a corporation
organized and existing under and by virtue of the laws of the State of Washington, and which is
authorized to transact business within the State of Washington, its successors and assigns (as
provided in Section 4), the right, privilege, authority and Franchise to Construct, Operate and
Maintain all Facilities necessary for the transportation, distribution and handling of natural gas
within the Franchise Area.
2.2 This Franchise is non-exclusive. City reserves all rights to its property, including,
without limitation, the right to grant additional franchises, easements, licenses and permits to
others to use the Rights-of Way and Public Ways,provided that the City shall not grant any other
franchise, license, easement or permit that would unreasonably interfere with Grantee's
permitted use under this Franchise. This Franchise shall in no manner prohibit the City or limit
its power to perform work upon its Rights-of-Way, Public Ways or make all necessary changes,
relocations, repairs, maintenance, establishment, improvement thereto, or from using any of the
Rights-of Way and Public Ways, or any part of them,as the City may deem fit from time to time,
including the dedication, establishment,maintenance and improvement of all new Rights-of-Way
and other Public Ways of every type and description. This Franchise shall not grant any rights to
Grantee for the use or location of its Facilities upon public property of the City other than
specifically described above as Rights-of-Way and Public Ways,without prior written agreement
identifying the terms and conditions of such use.
2.3 This Franchise is granted subject to the police powers, land use authority and
franchise authority of the City and is conditioned upon the terms and conditions contained herein
and Grantee's compliance with all applicable federal, state or other regulatory programs that
currently exist or may hereafter be enacted by any regulatory agencies with jurisdiction over
Grantee.
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2.4 By granting this Franchise, the City is not assuming any risks or liabilities
therefrom, which shall be solely and separately borne by Grantee. Grantee agrees and covenants
to, at its sole cost and expense, take all necessary and prudent steps to protect, support, and keep
safe from harm its Facilities, or any part thereof, as necessary to protect the public health and
safety.
2.5 This Franchise is only intended to convey a limited right and interest. None of the
rights granted herein shall affect the City's jurisdiction over its property, streets or Rights-of-
Way.
2.6 The limited rights and privileges granted under this Franchise shall not convey
any right to Grantee to install any new Facilities without required permitting by the City, which
permitting shall not be unreasonably conditioned, delayed or withheld.
2.7 Grantee acknowledges and warrants by acceptance of the rights and privileges
granted herein, that it is fully aware of the terms and conditions of this Franchise and is willing
to and does accept all reasonable risks assumed herein.
Section 3. Term. Each of the provisions of this Franchise shall become effective upon the
Effective Date, subject to Grantee's acceptance of the terms and conditions of this Franchise and
shall remain in effect for ten (10) years thereafter, herein referred to as the primary term. This
Franchise will automatically renew for successive periods of five (5)years each unless cancelled
at the end of a term by either party by written notice to the other parry no less than 180 calendar
days prior to the end of the primary term or the then current successive term.
Section 4. Assignment and Transfer of Franchise.
4.1 This Franchise shall not be leased, assigned or otherwise alienated without the
express consent of the City by ordinance, which approval shall not be unreasonably withheld,
except for the expressed purpose of mortgaging this franchise along with the gas utility facilities
and other property of the Grantee to secure any legal bond issue or other bona fide indebtedness
of the Grantee, however, such mortgage shall provide notice to the City of any default thereon
prior to realization on the property by the mortgagee.
4.2 Subject to the foregoing, Grantee and any proposed assignee or transferee shall
provide and certify the following to the City not less than 120 days prior to the proposed date of
transfer: (a) Complete information setting forth the nature, terms and conditions of the proposed
assignment or transfer; (b) All information reasonably required by the City of a franchise
applicant with respect to the proposed assignee or transferee; c) Any other information
reasonably required by the City, including information about the proposed assignee's or
transferee's safety record; and, d) An application fee which shall be set by the City, plus any
other costs actually and reasonably incurred by the City in processing and investigating the
proposed assignment or transfer.
4.3 No transfer shall be approved unless the assignee or transferee has at least the
legal,technical, financial,and other requisite qualifications to carry on the activities of Grantee.
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4.4 Any transfer or assignment of this Franchise without the prior written consent of
the City shall be void and result in revocation of the Franchise.
4.5 If such consent is given by the City, Grantee shall, within thirty (30) days, file
with the City a written statement evidencing such sale, assignment or transfer of ownership,
whereby the assignees/transferees shall agree to accept and be bound by all of the provisions of
this Franchise.
Section 5. Compliance with Laws and Standards.
5.1 In carrying out any authorized activities under the privileges granted herein,
Grantee shall meet accepted industry standards and comply with all applicable laws of any
governmental entity with jurisdiction over the Facilities. This shall include all applicable laws,
rules and regulations existing at the Effective Date of this Franchise or that may be subsequently
enacted by any governmental entity with jurisdiction over Grantee and/or Facilities.
5.2 In the case of any conflict between the terms of this Franchise and the terms of
City's ordinances, codes, regulations, standards and procedures, this Franchise shall govern. In
the event of a conflict between City regulations and federal or state laws, in which is has been
determined that federal law has preemption,the federal or state law shall govern.
Section 6. Construction and Maintenance.
6.1 All pipeline Construction, Maintenance or Operation undertaken by Grantee,
upon Grantee's direction or on Grantee's behalf shall be completed in a workmanlike manner.
6.2 Except in the case of an emergency,prior to commencing any Construction and/or
Maintenance work in the Franchise Area, Grantee shall first file with the City such detailed plans
and specifications of the intended work as may be required by the City public works
requirements in effect at the time of filing. The City may require such additional information,
plans and/or specifications as are in the City's opinion necessary to protect the public health and
safety during the Construction and/or Maintenance work and for the remaining term of this
Franchise.
6.3 All Construction and/or Maintenance work shall be performed in general
conformity with the maps and specifications filed with the City and in conformity with City-
issued permits. The City reserves the right to identify the exact location within the right-of-way
for the location of Grantee's Facilities reserving portions of the right-of-way for the specific
location of other future utility lines.
6.4 All pipe and other components of any Facilities used in Construction and/or
Maintenance activities within the Franchise Area will shall comply with applicable federal
regulations, as from time to time amended
6.5 Except in the event of an emergency, Grantee shall provide the City at least ten
(10) calendar days written notice prior to any Construction and/or Maintenance, or other
substantial activity, other than routine inspections and maintenance, by Grantee, its agents,
employees or contractors on Grantee's Facilities within the Franchise Area.
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6.6 Work shall only commence upon the issuance of applicable permits by the City,
which permits shall not be unreasonably conditioned, withheld or delayed. However, in the
event of an emergency requiring immediate action by Grantee for the protection of the Facilities,
City's property or other persons or property, Grantee may proceed without first obtaining the
normally required permits. In such event Grantee must (1) take all necessary and prudent steps
to protect, support, and keep safe from harm its Facilities, or any part thereof; the City's
property; or other persons or property, and to protect the public health and safety; and(2) as soon
as possible thereafter, must obtain the required permits and comply with any mitigation
requirements or other conditions in the after-the-fact permit.
6.7 Unless such condition or regulation is in conflict with a federal or state
requirement, the City may condition the granting of any permit or other approval that is required
under this Franchise, in any manner reasonably necessary for the safe use and management of the
public right-of-way or the City's property including, by way of example and not limitation,
bonding, maintaining proper distance from other utilities, protecting the continuity of pedestrian
and vehicular traffic and protecting any Rights-of-Way improvements, private facilities and
public safety.
6.8 Whenever necessary, after Constructing or Maintaining any of Grantee's
Facilities within the Franchise Area, Grantee shall, without delay, and at Grantee's sole expense,
remove all debris and restore the surface as nearly as possible to as good or better condition as it
was in before the work began. Grantee shall replace any property corner monuments, survey
reference or hubs that were disturbed or destroyed during Grantee's work in the areas covered by
this Franchise. Such restoration shall be done in a manner consistent with applicable codes and
laws, under the supervision of the City and to the City's satisfaction and specifications. The
restoration shall be done under a bond in an amount appropriate to guarantee adequate
restoration.
6.9 Grantee shall continuously be a member of the State of Washington "One -
Number Locator Service" under RCW 19.122, or an approved equivalent, and shall comply with
all such applicable rules and regulations. Grantee shall provide reasonable notice to the City
prior to commencing any Maintenance or Construction requiring City approval under this
Franchise. Grantee shall provide a design locate upon request and One-Call notification prior to
the initiation of any construction within the City right-of-way or public ways.
6.10 Markers demarcating certain Facilities shall be placed in accordance with
applicable pipeline safety regulations, but in a manner that does not interfere with trails or other
public uses in that area.
6.12 Upon written request from the City, Grantee shall also provide detailed as-built
design drawings showing the size, depth and location of specific Facilities within the Franchise
Area.
6.14 Nothing in this Franchise shall be deemed to impose any duty or obligation upon
City to determine the adequacy or sufficiency of Grantee's plans and designs or to ascertain
whether Grantee's proposed or actual construction, testing, maintenance, repairs, replacement or
removal is adequate or sufficient or in conformance with the plans and specifications reviewed
by City.
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6.15 Grantee shall be solely and completely responsible for workplace safety and safe
working practices on its job sites within the Franchise area, including safety of all persons and
property during the performance of any work.
6.16 Grantee agrees to provide the City with a performance bond in the amount of
fifteen thousand dollars ($15,000.00). The City reserves the right to require such other or
additional construction and/or Right-of-Way bonds, in amounts necessary to meet all costs of
restoration and for a period that the City, in its sole discretion, reasonably deems necessary and
prudent based on its consideration of the nature of the activity, public safety, potential damage,
potential liability and/or potential expenses to the City. If the City requires additional bonding
which the Grantee considers unreasonable, Grantee may initiate dispute resolution provided in
Section 14 below.
Section 7. Customer Service Line Location Standards.
7.1 All pipelines of Grantee's Facilities shall be laid at least 15 inches below the
surface of any City right-of-way or public way, and at least 15 inches below the bottom of any
other buried City water utility in such a manner as to not interfere with the present and future
delivery of such utility services. Such pipelines shall be laid no closer than four feet laterally
from any other pipe or conduit of other utilities. All above ground Facilities shall be located in
such a place and manner as not to present a hazard to vehicle and pedestrian traffic in accordance
with the standards adopted by the City. To the extent reasonable, Grantee shall utilize common
trenching practices with other utilities when such other utilities are cooperative with such
practices and with surface locators and facilities located near other utility outlets.
7.2 Grantee shall install, maintain and extend Facilities to service customers within
the Franchise Area in response to all reasonable requests for service and in accordance with its
rules and tariffs,as approved by the Washington Utilities and Transportation Commission.
Section 8. Operations and Maintenance.
8.1. Grantee shall operate and maintain its pipeline(s) and Facilities in the Franchise
Area in full compliance with the applicable provisions of Title 49, Code of Federal Regulations,
Part 192, as now enacted or hereinafter amended, and any other current or future laws or
regulations that are applicable to Grantee's Facilities, enacted by any governmental entity with
jurisdiction over the Grantee or its Facilities. Grantee shall,upon detection,notice from the City,
or Grantee's customer, promptly investigate all damages, leaks or defects to Grantee's Facilities
and complete appropriate repairs in accordance with pipeline safety regulations and City permit
approval.
8.2 If Grantee becomes aware that a third parry conducts any excavation of other
significant work that may affect the Facilities, Grantee shall conduct such inspections and/or
testing as is necessary to determine that no direct or indirect damage was done to the Facilities.
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Section 9. Encroachment Management.
9.1 Grantee and the City shall comply with current applicable federal, state and local
requirements regarding encroachment management including participation in the "One-Call
Number Services" system(RCW 19.122).
Section 10. Leaks Ruptures, Spills and Etneraencv Response.
10.1 Grantee warrants that during the term of this Franchise, it will maintain an
Emergency Response Plan that is in compliance with the applicable requirements of local, state
and federal agencies with jurisdiction. Within ninety (90) days of entering into this Franchise,
and on an annual basis thereafter, Grantee shall meet with City emergency management
personnel.
10.2 Grantee's Emergency Response Plan and procedures shall designate Grantee's
responsible local emergency response officials and a direct 24-hour emergency contact number
for the control center operator. Grantee shall, after being notified of an emergency, cooperate
with the City and make every effort to respond as soon as possible to protect the public's health,
safety and welfare, and to comply with all state and federal emergency response requirements.
Section 11. Required Relocation of Facilities.
11.1 In the event that the City undertakes or approves the construction of or changes to
the grade or location of any water, sewer or storm drainage line, street, sidewalk or other City
improvement project, and the City determines that the project might reasonably require changes
to or the relocation of Grantee's Facilities, the City shall provide Grantee at least one hundred
and twenty (120) calendar days prior written notice. Grantee may request additional time based
on good cause which the City shall not unreasonably deny.
11.2 Grantee shall not be required to relocate its Facilities at its expense for the benefit
of private owners or developers. However, if the City reasonably determines and notifies the
Grantee that the primary purpose for requiring such changes to or relocation of Grantee's
Facilities by a third party is to cause or facilitate the construction of an improvement project
consistent with the City's Capital Facilities Plan, Transportation Improvement Program, or the
Transportation Facilities Program, or other similar plan, then Grantee shall change or otherwise
relocate its Facilities at Grantee's sole cost, expense and risk. The City shall take all reasonable
steps to cooperate with Grantee on any effort by Grantee to apply for and obtain any local, state
or federal funds that may be available for the relocation of Grantee's Facilities provided,
however, that Grantee's application for such funds may not delay the City's improvement
project.
11.3 The City shall provide Grantee with copies of pertinent portions of the plans and
specifications for any improvement project that will potentially affect Grantee's Facilities. Upon
request, Grantee shall, at its cost and expense, determine and identify for the City the exact
location of its Facilities potentially affected by the improvement project.
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11.4 Grantee may, after receipt of written notice requesting a relocation of its
Facilities, submit to the City written alternatives to the relocation within forty five (45) calendar
days of receiving the plans and specifications. The City shall evaluate the alternatives and advise
Grantee in writing if one or more of the alternatives is suitable to accommodate the work that
would otherwise necessitate relocation of the Facilities. If requested by the City, Grantee shall
submit additional information to assist the City in making the evaluation. The City shall give
each alternative proposed by Grantee full and fair consideration but retains full discretion to
decide for itself whether to utilize its original plan or an alternative proposed by Grantee. In the
event the City ultimately determines that there is no other reasonable alternative, Grantee shall
relocate its Facilities as proposed by the City.
11.5 The City shall work cooperatively with Grantee in determining a viable and
practical route within which Grantee may relocate its Facilities, in order to minimize costs while
meeting the City's project objectives.
11.6 Provided that Grantee has received timely advance notice as required by this
section, Grantee shall complete relocation of its Facilities so as to accommodate a City
improvement project at least ten (10) calendar days prior to commencement of the improvement
project or such other time as the parties may agree in writing.
Section 12 Removal. Abandonment in Place.
12.1 In the event of the removal of all or a portion of the Facilities, Grantee shall
restore the Franchise Area to as good or better condition as it was in before the work began.
12.2 Removal and restoration work shall be done at Grantee's sole cost and expense
and to the City's reasonable satisfaction. Grantee shall be responsible for any environmental
review required for the removal of any Facility and the payment of any costs of the
environmental review.
12.3 If Grantee is required to remove its pipeline(s) and/or Facilities and fails to do so
and/or fails to adequately restore the Franchise Area or other mutually agreed upon action(s),
City may, after reasonable notice to Grantee, remove the pipeline(s) and/or Facilities, restore the
premises and/or take other action as is reasonably necessary at Grantee's expense. This remedy
shall not be deemed to be exclusive and shall not prevent the City from seeking a judicial order
directing that the Facilities be removed.
12.4 In the event of Grantee's permanent cessation of use of any Facilities, or any
portion thereof within the Franchise Area, damage, destruction, or removal of such abandoned
portions shall be permitted by the Grantee without any obligation for repair or restoration of such
Facilities. Upon abandonment, Grantee shall provide notice to the City. In the event an
abandoned facility directly causes disturbance to the surface of a City right-of-way as a result of
settling, collapse, or other causes as a direct result of the Facility, Grantee, upon notice from the
City, shall remove or remediate the abandoned Facility and restore the right-of-way surface.
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Section 13. Violations Remedies and Termination.
13.1 In addition to any rights set out elsewhere in this Franchise, or other rights it may
possess at law or equity, the City reserves the right to apply any of the following remedies, alone
or in combination, in the event Grantee violates any material provision of this Franchise. The
remedies provided for in this Franchise are cumulative and not exclusive; the exercise of one
remedy shall not prevent the exercise of another, or any rights of the City at law or equity.
13.2 The City may terminate this Franchise if Grantee materially breaches or otherwise
fails to perform, comply with or otherwise observe any of the terms and conditions of this
Franchise, or fails to maintain all required licenses and approvals from federal, state, and local
jurisdictions, and fails to cure such breach or default within thirty (30) calendar days of the
City's providing Grantee written notice thereof, or, if not reasonably capable of being cured
within thirty (30) calendar days, within such other reasonable period of time as the parties may
agree.
13.3 In the event of termination under this franchise, either party may in such case
invoke the dispute resolution provisions. Once the Grantee's rights to operate in the Franchise
Area have terminated, Grantee shall comply with Franchise provision regarding removal and/or
abandonment of Facilities.
13.4 The City's failure to exercise a particular remedy at any time shall not waive the
City's right to terminate, assess penalties, or assert that or any other remedy at law or equity for
any future breach or default of Grantee.
13.5 Termination of this Franchise shall not release Grantee from any liability or
obligation with respect to any matter occurring prior to such termination, nor shall such
termination release Grantee from any obligation to remove or secure the Facilities pursuant to
this Franchise and to restore the Franchise Area.
13.6: The City may cure any default upon Grantee's failure to do so within the default
period and the reasonable costs of such cure shall be borne by the Grantee.
Section 14. Dispute Resolution.
14.1 In the event of a dispute between the City and Grantee arising by reason of this
Franchise, the dispute shall first be referred to the Chief Operational Officer on behalf of the
Grantee, and the City Manager, or their designees. These parties shall meet within thirty (30)
calendar days of either party's request for a meeting, whichever request is first, and the parties
shall snake a good faith effort to achieve a resolution of the dispute
14.2 If the parties are unable to resolve the dispute under the procedure set forth in this
section, the parties hereby agree that the matter shall be referred to mediation. The parties shall
mutually agree upon a mediator to assist them in resolving their differences. Any expenses
incidental to mediation shall be borne equally by the parties.
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14.3 If the parties are unable to select a mediator or fail to achieve a resolution through
mediation, either party may then pursue any judicial remedies. Venue shall be placed in Franklin
County, Washington, before the Franklin County Superior Court or the United States District
Court of the Eastern District of Washington, and the substantially prevailing party shall be
awarded, as additional judgment against the other, its reasonable attorney fees and costs incurred
in the judicial action.
14.4 Subject to state and federal regulation, Grantee shall be permitted to continuously
operate and maintain its Facilities during dispute resolution.
Section 15. Indemnification.
15.1 General Indemnification. Grantee shall indemnify, defend and hold harmless the
City, it agents, officers or employees, from any and all liability, loss, damage, cost, expense, and
claim of any kind, including reasonable attorneys' and experts' fees incurred by the City in
defense thereof, arising out of or related to, directly or indirectly, the installation, construction,
operation, use, location, testing, repair, maintenance, removal, or abandonment of Grantee's
Facilities, or from the existence of Grantee's Facilities, and the products contained in,transferred
through, released or escaped from said Facilities, including the reasonable costs of assessing
such damages and any liability for costs of investigation, abatement, correction, cleanup, fines,
penalties, or other damages arising under any environmental laws. If any action or proceeding is
brought against the City by reason of the Facilities, Grantee shall defend the City at the
Grantee's complete expense, provided that, for uninsured actions or proceedings, defense
attorneys shall be approved by the City, which approval shall not be unreasonably withheld.
Section 16. Insurance and Bond Re uirements.
16.1 During this Franchise, Grantee shall provide and maintain, at its own cost,
insurance in the minimum amount of FIVE MILLION UNITED STATES DOLLARS
($5,000,000.00) for each occurrence, in a form and with a carrier reasonably acceptable to the
City, naming City as an additional insured, to cover any and all insurable liability, damage,
claims and loss as set forth in Section 15.1 above. In the event that a deductible applies to the
insurance herein, Grantee agrees to pay the amount of that deductible.
16.2 Proof of insurance shall be provided to the City. Said insurance shall contain a
provision that it shall not be canceled without a minimum of thirty (30) days prior written notice
to the City.
16.3 Grantee shall retain the right to self-insure any insurance requirement contained in
this Agreement. If Grantee elects to self-insure, Grantee shall provide the City a letter of self-
insurance in lieu of a certificate of insurance. However, if Grantee elects to self-insure, the City
retains the right to require such other surety from Grantee as it determines is reasonable and
necessary in lieu of being named an additional insured.
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16.4. On or before the Effective Date of this Franchise, Grantee shall furnish a bond
executed by Grantee and a corporate surety authorized to do surety business in the State of
Washington, with an AM Best rating of A XII in a sum to be set and approved by the City as
sufficient to insure performance of Grantee's obligations and performance under this Franchise,
such bond to be conditioned that Grantee shall well and truly keep and observe all of the
covenants, terms and conditions and faithfully perform all of Grantee's obligations under this
Franchise. If Grantee determines that the sum requested by the City is unreasonable, Grantee
may initiate dispute resolution provided in Section 14 above.
Section 17. Taxes.
17.1 Grantee shall collect and pay any taxes such as a utility tax as authorized by RCW
35.21.865 which shall be an amount levied pursuant to PMC 5.32.040.
Section 18. Legal Relations.
18.1 Nothing contained in this Franchise shall be construed to create an association,
trust, partnership, agency relationship, or joint venture or to impose a trust, partnership, or
agency duty, obligation or liability on or with regard to any party. Each party shall be
individually and severally liable for its own duties, obligations, and liabilities under this
Franchise.
18.2 Grantee accepts any privileges granted by City to the Franchise Area, public
Rights-of-Way and other Public Ways in an "as is" condition. Grantee agrees that the City has
never made any representations, implied or express warranties or guarantees as to the suitability,
security or safety of Grantee's Facilities or location in public property or rights of way or
possible hazards or dangers arising from other uses of the public rights of way or other public
property by the City or the general public. Grantee shall remain solely and separately liable for
the function, testing, maintenance, replacement and/or repair of the Facilities or other activities
permitted under this Franchise.
18.3 This Franchise shall be governed by, and construed in accordance with, the laws
of the State of Washington and the parties agree that in any action, except actions based on
federal questions,venue shall lie exclusively in Franklin County, Washington.
Section 19. Miscellaneous.
19.1 In the event that a court or agency of competent jurisdiction declares a material
provision of this Franchise Agreement to be invalid, illegal or unenforceable, the parties shall
negotiate in good faith and agree, to the maximum extent practicable in light of such
determination, to such amendments or modifications as are appropriate so as to give effect to the
intentions of the parties as reflected herein. If severance from this Franchise Agreement of the
particular provision(s) determined to be invalid, illegal or unenforceable will fundamentally
impair the value of this Franchise, either party may apply to a court of competent jurisdiction to
reform or reconstitute this Franchise so as to recapture the original intent of said particular
provision(s). All other provisions of the Franchise shall remain in effect at all times during
which negotiations or a judicial action remains pending.
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19.2 Whenever this Franchise sets forth a time for any act to be performed, such time
shall be deemed to be of the essence, and any failure to perform within the allotted time may be
considered a material violation of this Franchise.
19.3 In the event that Grantee is prevented or delayed in the performance of any of its
obligations under this Franchise by reason(s) beyond the reasonable control of Grantee, then
Grantee's performance shall be excused during the force majeure occurrence. Upon removal or
termination of the force majeure occurrence the Grantee shall promptly perform the affected
obligations in an orderly and expedited manner under this Franchise or procure a substitute for
such obligation or performance that is satisfactory to the City. Grantee shall not be excused by
mere economic hardship nor by misfeasance or malfeasance of its directors, officers or
employees.
19.4 The section headings in this Franchise are for convenience only, and do not
purport to and shall not be deemed to define, limit, or extend the scope or intent of the Section to
which they pertain.
19.5 By entering into this Franchise, the parties expressly do not intend to create any
obligation or liability, or promise any performance to, any third party, nor have the parties
created for any third party any right to enforce this Franchise.
19.6 This Franchise and all of the terms and provisions shall be binding upon and inure
to the benefit of the respective successors and assignees of the parties.
19.7 Whenever this Franchise calls for notice to or notification by any party, the same
(unless otherwise specifically provided) shall be in writing and directed to the recipient at the
address set forth in this Section, unless written notice of change of address is provided to the
other party. If the date for making any payment or performing any act is a legal holiday,
payment may be made or the act performed on the next succeeding business day which is not a
legal holiday.
Notices shall be directed to the parties as follows:
To the City:
City Manager
City of Pasco
525 North 3rd
Pasco, Washington 99301
To the Grantee:
Cascade Natural Gas Corporation
Attn: Operations/Franchise
PO Box 24464
Seattle, Washington 98124-0464
Cascade Natural Gas Ordinance- 12
19.8 The parties each represent and warrant that they have full authority to enter into
and to perform this Franchise, that they are not in default or violation of any permit, license, or
similar requirement necessary to carry out the terms hereof, and that no further approval,permit,
license, certification, or action by a governmental authority is required to execute and perform
this Franchise, except such as may be routinely required and obtained in the ordinary course of
business.
19.9 This Franchise and the attachments hereto represent the entire understanding and
agreement between the parties with respect to the subject matter and it supersedes all prior oral
negotiations between the parties. This Franchise can be amended, supplemented, modified or
changed only by an agreement in writing which makes specific reference to the Franchise or the
appropriate attachment and which is signed by the party against whom enforcement of any such
amendment, supplement, modification or change is sought. All previous franchise agreements
between the parties pertaining to Grantee's Operation of its Facilities are hereby superseded.
19.10 Grantee shall, within thirty(30) days after passage of this Ordinance, file with the
City Clerk, its unconditional written acceptance of all the terms and conditions of this Franchise.
If Grantee shall fail to so file its written acceptance within such period, then the rights and
privileges granted hereunder shall be deemed forfeited.
Cascade Natural Gas Ordinance- B
PASSED by the City Council of he City of Pasco, Washington, and approved as
provided by law this 17 'day of , 2006.
(146notz-
Joyc 1 n, Mayor
Attest: Approv as to rm:
Sandy Kenwphhy, Deputy City erk Leland B. Kerr, City Attorney
Date of Publication: Q
UNCONDITIONAL ACCEPTANCE BY GRANTEE
I, the undersigned official of Cascade Natural Gas Corporation, am authorized to bind
Cascade Natural Gas Corporation and to unconditionally accept the terms and conditions of the
foregoing Franchise (Ordinance No. which are hereby accepted by Cascade Natural
Gas Corporation this ` `day of , 20 0�
Case e Na ral G or io ` t,`�►! Y �. '''�,
B
46
Name: Daniel E.Meredith LoA PUBLIC
Title: _Sr. Director, Safety & Engineering
Subscribed and sworn to before me this k day of u , 2006
Notary Public in and or the State of Washington
My commission expires r)c-t t. O (0
Received on behalf of the City this day of A�JA� ' 2006
Name:
r
Title:
Cascade Natural Gas Ordinance- 14