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HomeMy WebLinkAbout0839 Ordinance - Franchise - Cascade Natual Gas Corp.ORDINANCE NO. 839 AN ORDINANCE GRANTING TO CASCADE NATURAL GAS CORPORATION, A WASHINGTON CORPORATION, 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 PASCO. GRANTING TO SAID CITY THE RIGHT TO -ACQUIRE THE GAS UTILITY PROPERTIES AND FACILITIES OF THE GRANTEE WITHIN SAID CITY UPON PAY- MENT OF COMPENSATION AS HEREIN PROVIDED, AND SUBJECT TO OTHER SPECIFIED LIMITATIONS, TERMS AND CONDITIONS. THE CITY COUNCIL OF THE CITY OF PASCO, WASHINGTON DOES ORDAIN AS FOLLCNSs GRANT SECTION 1, That Cascade Natural Gas Corporation, a Washington Corporation, its successors and assigns, be and it is hereby granted the right, privilege and franchise to construct, operate and main- tain in, through and along the present and future streets of the said City, and in through and along the present and future alleys, parkings, public properties and other places of said 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 said City and the inhabitants thereof, for the full term of this franchise, free from all. taxation except as herein provided for, but subject however, to the limitations herein set forth, and provided, however, that the physical property or properties •f the Grantee shall be taxed as other property,in the City of Pasco, Washington. Said right and franchise shall be subject to the rights of the City itself to engage in such business at any time, CONDITIONS AND TERMS SECTION 2. In consideration for the granting of this franchise the Grantee shall pay to the city of Pasco from and after the date of the acceptance of thin franchise and until its expiration, such percent of its gross service receipts, received from customers within the City limits, as such occupational tax shall be lawfully required from time to time by ordinance of the City, prvided that said per- cent shall not exceed the gross revenue tax percentage levied or -2 - assessed by the City, upon or against the gross receipts of any other privately -owned -public service corporation doing business in the City, and in addition thereto, the Grantee shall pay to the City such business license tax or charge as shall be currently charged for other businesses in the City. SECTION 3. The Grantee herein agrees as additional consideration for the granting of this franchise to establish, keep, maintain and conduct in the City of Pasco an office for the trans- action of its business with the inhabitants and customers of the Grantee in the said City, at which office all bills for service rendered by the Grantee in the said City, may be paid. SECTION 4. The Grantee shall be subject to the super- vision, regulation and control as to rates, services and other mat - tens in the manner prescribed by law as now enacted or to be here- after enacted. SECTION 5. All rights and privileges granted and duties imposed by this instrument upon Grantee shall extend to and be bind- ing upon its successors, receivers, liquidators and/or assigns and the right is expressly granted to the Grantee and its successors, receivers, liquidators, and/or assigns, to assign this instrument and contract, and all the rights pertaining thereto, subject to the limitation hereinafter mentioned. SECTION 6. In all instances herein whenever the word "Grantee" isused, it shall be underst;+od to mean and include Grantee, its successors, receivers, liquidators, and/or assigns, fully and to the same extent as though completely written out, un- less otherwise stipulated. SECTION 7. In all instances herein whenever the words "Public Properties" are used they shall be understood to mean and include the thoroughfares, highways, roads, streets, avenues, park- ways, -alleys, sidewalks, viaducts, bridges, public grounds, public properties and other public places and public grounds within the corporate limits of said City of Pasco, Washington, SECTION 8. The fights, privileges and franchise hereby granted to and conferred upon the Grantee shall, unless this franchise -3, - be sooner terminated as herein provided, extend for the full term of fifty years from the date of the acceptance hereof by the Grantee. Such acceptance must be filed in writing with the City Clerk of the City of Pasco, Washington, within 60 days of the effective date of this ordinance, duly signed by the President of grantee corporation and attested by its secretary, and with sufficient evidence that said officers are authorized to accept the same, and if not so filed, this Ordinance shall be null and void in all respects, as if never passed. SECTION 9. The Grantee by its acceptance of the above franchise, for itself, its successors or assigns, covenants and agrees to and with the City of Pasc• at all times to protect and save harmless the said City, from all claims, actions, suits, liab- ility, loss, expense or damage of every kind and description, which may accrue to or be suffered by a person or persons, firm, corpora- tion or other body sustaining any damage, arising out of the owner- ship, construction or operation of said gas system and/or by reason of any infringement of any patent of any article or system used in the construction or use of said gas distributing system. Grantee agrees that during the life of its franchise, and/or renewals hereof, it will maintain in full force and effect, with a carrier or carriers licensed to do business in the State of Washington, the following: (a) Compensation insurances complying with all the workments insurance and safety laws of the State of Washington, and amendments thereto; (b) Bodily injury liability insurance, with limits of $100,000.00 each person, and $3009000.00 each occurance, and (c) Property damage liability insurance, with limits of $50,000.00 each accident, and $100,000.00 aggregate. In each policy of insurance referred to in sections (b) and (c), the City of Pasco shall be named as an additional in- sured, and appropriate certificates of such insurance shall be de- livered to the City. SECTION 10. The above insurance requirements shall* be waived during such times as the Department of Public Service of the State of Washington shall certify, after public hearing of which the City shall be given notice, that the granteets insur- ance reserves are sufficient to provide the above protection' De- ductible provisions shall be acceptable if proper insurance re- serves are provided to cover .fully all deductible items, and are certified as sufficient by the Department of Public Service of the State of Washington. ORDINANCE AND ACCEPTANCE CONSTITUTE CONTRACT SECTION 11. 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, but no assignment shall be made pur- suant to Section 5 hereof without first obtaining the written con- sent of the City Council of the City of Pasco, as provided by Sec- tion 26 herein. GRANTEE TO CONSTRUCT PLANT SECTION 12. Grantee shall in any event commence the actual work of construction of the plant and laying of the pipes of the Grantee, within a reasonable time after construction of a gas trans- mission line designed to make gas available to the Pasco area has commenced and to thereafter prosecute said construction dilligently and continuously to completion in such manner as to provide natural gas to domestic customers within 6 months after natural gas is avail- able in the main line and if not so constructed and completed all rights and privileges of this franchise shall be forfeited provided, however, that if the Grantee is rendered unable to complete said construction of said system by force majeure, the City shall give to the Grantee an extension of time equal to the time lost through said force majeure. If within a period of 5 years from date of acceptance of this franchise, the construction of a gas distribution system within the city has not been completed for any reason then all rights of grantee'& under this franchise shall be deemed terminated. Mains of suitable size shall be laid in utility easements and -5 - the alleys wherever reasonably possible rather than in the public streets except where necessary to cross streets as determined by the Grantee, and shall be so laid as to make the gas service of the Grantee available to the consumers of said City, any, deviation there- from to be with the consent of the City Council. The Grantee shall submit a blue print or map if the location of all mains in the streets, alleys, parkings and public places of said City, which must be ap- proved by the proper committee of the City Council or whomever may act for it in such regard before the pipe is laid. .All materials and equipment used in the construction of said gas distribution system shall conit)rm to the specifications and requirements of the American Gas Association, and all equipment be approved by the Na- tional Board of Fire Underwriters and/or the current applicable code of the American Standards Association. Provided that the Grantee, its successors and assigns shall not be required to construct or extend any gas main into or along any block of three hundred feet in said City antil at least four consumer; in such block agree in writing to take and install said service, and accordingly, at least three consumers for two hundred and fifty feet, two for two hundred feet, and one for one hundred feet. LAYING PIPE SECTION 13. All pipe lines of the Grantee shall be laid at least fifteen inches below the surface of the streets and alleys of said City and at least such depth below the bottom of all irri- gation and drain ditches and in such a manner as not to interfere with any.present public; or private irrigation,or drain ditches, drains, sewers, water mains, conduits, sidewalks, paving or other public improvements., All "repairs thereto -or replacements thereof entailed by the construction, operation and maintenance of said gas plant and enlargements thereof, which are contemplated here - as in, shall be/provided in Section 14. The said City reserves the right to construct, change or repair any public improvements,.,T and to change the grades of any streets.and'..alleys, written notice of such intention and when such is to be done, where any part or parts of the gas distribution system here in contemplated is involved, to be first given the Grantee, and, if any such 4,., changes or re- pairs be made, the Grantee shall at its own expense lower, change or alter his pipe lines or appurtenances involved accordingly and in accordance with a standard practice or any regulations thereto pertaining, and the Grantee shall not interf ere with the conduits, domestic water or irrigation pipe lines, drains, sewers, sidewalks, paving or other public improvements of said City or the public utilities therein. If practicable, no pipe lines shall be laid closer than two feet to any water, main or. other pipe or conduits of other utili- ties. All irrigation pipeline must be replaced in a good workman- like manner as quickly as possible in all cases, at the sole expense of Grantee. REPAIRS AND REPLACEMENTS SECTION 14. All earth, materials, sidewalks, paving, crossings - or improvements of any kind disturbed, injured or removed by the Grantee shall, within a reasonable time, be fully,repaired and/or replaced promptly with like material by the Grantee a.tI*.Granteers sole expense, and the grantee shall forever protect and save said City: harmless from any loss or damages thereon. Said disturbed and/or replaced areas must be maintained in good condition' by grantee for one year after completion of the work, and if not so maintained In good repair said areas may be repaired by the City, and the cost thereof charged to grantee, and Grantee hereby agrees to pay the same. EXCAVATIONS TO BE SUPERVISED SECTION 15. Any excavations by the Grantee in any of the streets, roads, alleys or public grounds within the limits of said City shall be done, in accordance with such reasonable rules, regulations, re- solutions and ordinances now enacted or to be enacted by the Govern- ment of said City, relating to excavations in streets, alleys and public grounds of said City, and under the direction and supervisions of the officials of said City, who, from time to time, may be invest- ed with the supervision over the streets and alleys of said City. Each month Grantee shall pay the reasonable costs of salary and inci- dental expense of such supervisor. GRANTEE, TO • MAKE EXTENS IONS AMID — I NSTWEALL SERVICE DEVI CES SECTION 16. The Grantee shall at all times during the term of this franchise install and maintain, at its own expense, such service devices, street services, and regulating and measuring de- vices, exclusive of meters, as may be necessary for supplying ser- vice to the consumers, such requirement extending only to services to the curb line along the line of the main where the main is in the street, and to the abutting property line where the main is in the alley. 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 reason- able rules and regulations as to rates, services and other matters as may be prescribed by the body or authority having jurisdiction thereover, in accordance with the provisions herein contained or referred to. If the State of .Washington shall abandon such super- vision, the City of Pasco may prescribe such rules and regulations or any part or portion thereof, as may be in effect by the Depart- ment of Public Services. of the .Mate of Washington at the time the grantee commences actual operation of said gas distribution system under this franchise, or;such other reasonable and proper rules and regulations as said City may deem necessary, unless said City is otherwise prohibited by law from so doing. DUALITY AND PRESSURE OF GAS SECTION 17. The gas to be supplied to said City and its in- habitants under the terms and conditions hereof shall be merchant- able gas and shall be supplied to the consumers4 meters at such rea- sonable pressure as may be prescribed by the regulatory body having jurisdiction over such matters, RATES AND COND I TI ONS OF SERVICE SECTION 18. The rates to be charged and exacted, and the rules4 and regulations in respect of the conditions, character, quality and standards of service to be furnished by the Grantee, and all such matters, shall be under the jurisdiction and control of such regula- tory body„ state or otherwise, as may from time to time be vested by law with the authority and jurisdiction thereover. MAPS, PLATS, RECORDS, ETC. SECTION 19. The Grantee shall at all times keep maps and re- cords showing the locations and sizes of all gas mains laid by it in said City, and such maps and records shall be subject to inspec- tion at all reasonable times in said City by the proper officials or agents of said City. Four copies of a corrected and up-to-date map of such locations shall be furnished to the City Clerk each month. METERS SECTION 20. All gas sold and distributed by the Grantee shall be by meter measurement, on the property of, or at, or in the build- ing 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 thereof. The Grantee shall furnish and install good and reliable meters without charge to the consumers, and the terms and conditions of furnishing and testing thereof shall be as prescribed by the regulatory body haying jurisdiction over such matters. GRANTEE TO MAKE RULES AND REGULATIONS SECTION 21. The Grantee, its successors and assigns may make such reasonable rules and regulations for the protection of its pro- perty, for the prevention of loss and waste, for safety purposes, for the conduct of business and in respect of the sale or distribu- tion of gas, as may be advisable or necessary from time to time, all in accordance herewith and valid applicable state laws, rules and regulations. FORFEITURES OF FRANCHISE SECTION 22. 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 M not occur or take effect until said City shall carry out' the following proceedings and procedures: Before said City may proceed to forfeit said franchise as in this section provided, it shall first serve written notice upon the manager of the Grantee, its successors or assigns, as provided by law for the services of summons, and upon the trustees under any mortgage or trust instruments, if any, filed or. recorded in Franklin County, Washington, and any other representatives of investors, if any, of which there is a filing or record in such county, by mailing by registered mail to such trustee, trustees, representative?' or representatives, if any written notice, all such notices to set forth clearly and in detail the failure or violation complained of, and the Grantee, its successors or assigns shall '.have ninety days thereafter in which to comply with the conditions of this franchise. If such failure or .violation continue beyond said ninety days, the City may bring action in the Superior Court of the State of Washing- ton in and for Franklin County or any other court of competent juris- diction, to forfeit said franchise, and if such court shall find, and such findings shall be sustained on appeal, if any, that the Grantee, its successors or assigns shall have failed in any material and substantial respect to comply with this ordinance, so that said Cityts rights or the rights of the inhabitants thereof have been materially and substantially affected thereby, or that the Grantees, its successors or assigns shall have done or caused to be done any act or thing prohibited by or in violation of the terms of this ordinance so that said Cityts rights or said inhabitantst rights have been materially and substantially affected thereby, and that the ground or grounds of forfeiture set forth in the notice had not been cured at the time of commencement of suit, then the City shall,' have the right to have the court enter judgment declaring this fran- chise .forfeited and assessing the costs of such action against/ the Grantee, its successors or assigns, Prouided, however, that any such failure, default or violation shall not constitute ground for forfeiture if due materially, substantially and reasonably to act of God, fire, flood, storm, or other element or casualty, theft, _10 - war; disaster, strike, lockout, boycott, labor disturbance or, disruption, governmental authority, all•ocatio ns, rules or,regula- tions, shortages of materials or labor, shipping or transportation shortages„ prevailing war or war preparation induced conditions, or bona fide legal proceedings, beyond the reasonable control of the Grantee, its successors or assigns. REMEDIES TO ENFORCE COMPLIANCE SECTION 23. The City, in addition to its right to forfeit this ordinance and franchise, as provided in Section 22, reserves and has the right to pursue any remedy to compel or enforce 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 there- after declaring a forfeiture for any reason herein stated, nor shall the delay of the City in declaring a forititure estop it from there- after doing so, unless the action of the City shall have presented, caused or contributed materially to the failure to perform or do the act or thing complained of. The cost of any such action shall be assessed against the Grantee, its successors or assigns. RECORDS AND RIGHT OF CITY TOACQUIRE GRANT£EYS PROPERTY SECTION 24. Grantee shall keep an accurate record of costs of its gas system and annual gross receipts thereof in.said City and shall furnish the City of Pasco, Washington with such itemized record of costs for the purpose of establishing the value of the physical property included in its gas transporting system and/or distributing system, and/or computing the tax on gross receipts. SECTION 25. The Grantee by its acceptance of this ordinance expres.sly agrees that the City shall have the right, at any time during the term of the franchise granted by this ordinance, to acquire all of the gas utility property and facilities of the Grantee situated within the corporate limits of the City, for a compensation to be determined by agreement or arbitration in the manner herein- after provided, or by condemnation in the manner provided by law, upon the approval by the qualified electors of the City of Fusco, of an ordinance authorizing the acquisition of such property by the City. If such ordinance shall provide for such acquisition at a com- pensation to be determined by agreement or arbitration, the City and the Grantee shall each promptly appoint a representative, with authority in behalf of the City and the Grantee, respectively to agree upon and determine the compensation so to be paid by, the City for such property; and in the event of the failure of such repre- sentatives, within a period of six months after their appointment, to agree upon the compensation so to be paid, such representatives shall select a third person to act with such representatives as a board of arbitrators to determine the amount of such compensation; and the decision of a majority of such board as to the compensation so to be paid by the City shall be binding upon both the City and the Grantee.. In the event of the failure of such representatives appointed by the City and the Grantee promptly to agree upon the selection of such third person.-: to serve on such board of arbi- trators, after failing to agree between themselves upon the amount of such compensation, such third person may be appointed on appli- cation of either party by the Judge of the United States District Court for the district in which the City is located. The City and the Grantee shall each pay the cost of the services of the repre- sentative:_ appointed by it, and the City .and the Grantee shall each pay .one-half of the cost of the services of the third member of such board if any. Upon the payment of lawful tender to the Grantee of the compen- sation so agreed upon by such representatives, or as determined by such board of arbitrators, the Grantee shall transfer and con- vey to the City all of the gas utility property and facilities of-* the Grantee for which the compensation shall have so been agreed upon or determined; but in the event of the failure of,the City to pay or make lawful tender to the Grantee of such compensation within six months after final determination of the amount thereof, such determination and all proceedings incident to the making thereof shall become null and void; and shall cease to be binding upon either party. Nothing, hereinabove set forth, however, shall be construed as any limitation upon or waiver of the Cityfs right to acquire such -12 - property of the Grantee at any time by condemnation in the manner provided by law, if the City, shall elect so to acquire such property. The grantee expressly recognizes and agrees, with respect to the acquisition by the City of the Granteets gas utility property and facilities within the City, whether the compensation to be paid therefore be determined by agreement or arbitration as above pro- vided or by condemnation, that no compensation or value shall be allowed or taken into account for the unexpired term of the right and franchise granted by this ordinance. ASSIGNMENT OF FRANCHISE SECTION 26. The franchise hereby granted shall not be leased, assigned or otherwise alienated without the express consent of the City by ordinance passed for the purpose, and no rule of estoppel shall ever be invoked against the City in case it shall assert the invalidity of any Vattempted transfer in violation of this sec- tion; but the consent of the City is hereby expressly given to the mortgaging of said franchise, together with the gas utility property and facilities of the Grantee within the City, under any presently outstanding or future mortgage or mortgages given to se- cure any bonds or other bona fide indebtedness of the Grantee. SAVING CLAUSE SECTION 27. That the provisions, portions and/or sections of this ordinance are severable, and if any provision,portion and/or section is, and/or any provision$,portions and/or sections are, held to be invalid, illegal or void, the illegality or invalidity of such parts shall in no manner affect the validity or legality of=x the remainder of this ordinance. EFFECTIVE SECTION 28. This ordinance shall take effect and commence in full :force on the day next following the expiration of five days from and after its passage, approval and publication as provided by law, provided and upon the acceptance thereof by the Grantee, its successors or assigns as above provided. Upon its -13 - taking effect all other ordinances or parts of ordinances incon- sistent or in conflict with said ordinance are hereby repealed. This ordinance having been read three times in its entirety waa adopted as a whole by the following vote: Yeas -- Bonnett, Combs, Connell, Hicks, Milne, VanHoy and tier. Nays -- None And the ordinance was declared adopted on this the 6th day of December, 1955. CITY OF PASCO, WASHINGTON Harry V. uster, Mayor ATTEST: Adah M. Perry, Ci erk .Appy v d as to for Richard G. Patrick, City Attorney Date of Publication: IJP f %�"� CASCA D E TauGA 4 0 7 SECURITIES BUILDING S E A T TLE 1, W,A S H INGTON CORPORATION February 3, 1956 The City of 'Pasc;o City Hall Pasco, Washington Attention: Miss Adah M. Perry, City Clerk Gentlemen: Please consider this letter as our formal acceptance of Ordinance No. 8:39, passed by your City Council on December 6, 1955, granting to .Cascade Natural Gas Corporation a fifty-year franchise to construct, operate, and maintain gas' distribution facilities in the City of Pasco. Yours very truly, CASCADE NATURAL GAS CORPORATION By �. President SM/gf