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HomeMy Public PortalAboutORD 62_Intermountain Gas Franchise_08201995ORDINANCE NO. AN ORDINANCE OF THE CITY OF IONA, IDAHO, GRANTING TO INTERMOUNTAIN GAS COMPANY A THIRTY (30) YEAR EXTENSION TO ITS FRANCHISE TO CONSTRUCT, MAINTAIN AND OPERATE A GAS TRANSMISSION AND DISTRIBUTION SYSTEM; PROVIDING FOR THE USE OF STREETS AND ALLEYS, AND RULES GOVERNING THE SAME, SUBJECTING THE GRANTEE TO ALL POWERS OF THE CITY; SETTING FORTH THE RULES OF THE FRANCHISE AND GRANT; PROVIDING FOR THE RIGHT OF INSPECTION BY THE CITY OF GRANTEE'S PLANS, ACCOUNTS, AND BOOKS; REQUIRING GRANTEE TO FURNISH CERTAIN MAPS; SETTING FORTH TI-IE QUARTERLY PAYMENT TO THE CITY, AND THE FILING OF QUARTERLY REPORTS WI"fII TI-IE CITY; REQUIRING GRANTEE TO INDEMNIFY CITY, AND FILE EVIDENCE OF INSURANCE; REQUIRING COMPLIANCE WITH SAFETY REGULATIONS; SETTING FORTH AN AGREEMENT NOT TO COMPETE, RESERVING POWER OF EMINENT DOMAIN; PROVIDING FOR SURRENDER OF FRANCHISE; GRANTING RIGHT TO SALVAGE; REQUIRING WRITTEN ACCEPTANCE; PROVIDING FOR CONSENT TO SALE OR ASSIGNMENT; PROVIDING FOR PAYMENT OF PUBLICATION COST; SETTING FORTH PENALTIES AND FORFEITURES, SEPARABILITY AND REPEAL. BE IT ORDAINED BY TIIE MAYOR AND COUNCIL OF IONA, IDAHO: SECTION I. GRANT OF AUTHORITY There is hereby granted to Intermountain Gas Company, a corporation, its successors and assigns (hereinafter collectively referred to as "Grantee"), a thirty (30) year extension to the right and authority to construct, install, maintain and operate a gas transmission and distribution system, including mains, pipes, conduits, services and other necessary structures and appliances appertaining in, under, upon, over, across and along the streets, alleys, bridges and public places within the present and future corporate limits of the City of Iona, Idaho (hereinafter referred to as "City"), for the furnishing, transmission, distribution and sale of gas, whether artificial, natural, mixed or otherwise, for heating, domestic, industrial and other purposes and for transmitting gas into, through and beyond said City. The City represents that it presently has the sole power and authority to make this grant of authority and agrees to seasonably notify Grantee in writing if a court of competent jurisdiction determines the City no longer has this power. SECTION II. USE OF STREETS AND RULES GOVERNING SAME Grantee shall secure a permit whenever it shall make any opening in the streets, alleys or public places in the City. The City has the right to require such permit irrespective of whether it adopts further ordinances regulating the construction, operation or maintenance of public utility lines within public streets, alleys or rights of way . Grantee shall be subject to all present or future ordinances of the City which regulate the construction, operation or maintenance of public utility lines within public streets, alleys, rights of way or easements to the extent such ordinances are not directly inconsistent with the terms hereof, but no fee shall be required of Grantee for any permits required by such ordinances. Grantee may locate or relocate its gas lines at any location within such places, provided such gas lines do 2 - ORDINANCE not interfere with the operation or maintenance of any existing water main, sewer main, electric line or pole, storm drain, irrigation conduit or other public utility line or appurtenance owned by the City or any other public utility or water company. Whenever the City shall pave or repave any street or shall change the grade or line of any street or public place or shall construct or reconstruct any irrigation conduit, water main, sewer or water line, storm drain or related appurtenances or other city -owned or operated works or utility, it shall be the duty of the Grantee when so ordered by the City to move, alter, change or reconfigure its mains, services and other property in the streets or public places at its own expense so as to conform to the established grade or line of such street or public place and so as not to interfere with such facilities of the City as constructed or reconstructed; however, the Grantee shall not be required to relocate pipes, mains and appurtenances when the street, alley or public ground in which they are located is vacated for the convenience of abutting property owners and not as an incident to the public improvement, unless the reasonable cost of such relocation and the loss and expenses resulting therefrom is first paid to Grantee. The City will avoid issuing such orders, unless reasonably required for the public health, welfare or safety. 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 fiends are actually obtained. Grantee shall comply with the provisions of the Underground Facilities Damage Prevention Act, as set forth in Idaho Code, §55-2201 et seq, as it presently exists or as may 3 — ORDINANCE be amended hereafter, and the City shall no responsibility with respect to the construction, location or relocation of underground facilities by or at the request of a private party. Whenever the City desires to perform excavation of any City -owned water main, sewer main, storm drain or other public work, and the work contemplated requires the exposure of any gas pipes, mains or appurtenances of the Grantee, the City shall, whenever reasonably possible, first give Grantee at least forty eight (48) hours advance notice of its intent to commence such work. Nothing herein shall prevent the City from performing emergency work, provided in such event the City shall give such notice as is reasonable under the circumstances. SECTION III. GRANTEE SUBJECT TO ALL POWERS OF CITY GOVERNING REPAIR AND RECONSTRUCTION OF STREETS The exercise of privileges herein granted shall be subject at all times to all of the powers of the City and all present or future regulatory ordinances adopted pursuant thereto. Grantee shall not unnecessarily or unreasonably obstruct the use of or damage any street or alley, and shall within a reasonable time and as early as practicable upon completion of any construction or repair work, restore all City streets and alleys to the same order and condition as they were before the excavation was made, insofar as reasonably possible. Grantee shall maintain, repair and keep in good condition for a period of one year from the date of acceptance by the City, all portions of streets and alleys disturbed by it or its agents. The 4 - ORDINANCE Grantee shall be responsible for any obstruction in any street, alley or other public place caused by it in the operation and maintenance of its properties occurring at anytime and shall promptly remove such obstruction. Any such obstruction which, after written notice to Grantee, is not promptly and within a reasonable time, removed by the Grantee may be taken care of by the City and the costs thereof shall be charged against Grantee and may be enforced as a lien upon any of its properties or assets. During the course of any construction, location, relocation or maintenance of any of Grantee's gas lines, facilities or related appurtenances, Grantee shall observe and undertake all reasonable and appropriate safety precautions necessary to prevent injury to property or person and Grantee shall observe all federal, state or local laws, statutes, ordinances or regulations applicable to the safe and proper conduct of such operations. SECTION IV. TERM OF FRANCHISE AND GRANT The right, authority and grant herein and hereby made to said Grantee, its successor and assigns, is granted for, and limited in time to, a period of thirty (30) years from July 1, 1995 through and including June 30, 2025. This ordinance shall be effective nunc pro tune to July 1, 1995, following its passage, execution and publication in the manner provided by law. 5 ORDINANCE SECTION V. CITY RIGHT TO INSPECTION OF GRANTEE'S PLANS, ACCOUNTS AND BOOKS - GRANTEE TO FURNISH CERTAIN MAPS The City shall have access at all reasonable hours to all of the Grantee's plans, contracts and engineering, accounting, :finance, statistical, customer and service records relating to the property and operations of Grantee within the City. Upon request of the City, the Grantee shall furnish, without charge or cost, a complete and accurate set of maps, including plans and profile of the distribution system of the Grantee and any future extensions. SECTION VI. PAYMENT TO CITY AND FILING OF QUARTERLY WRITTEN REPORT WITH THE CITY As consideration for this franchise and grant, Grantee, and its successors and assigns, during the franchise period, shall pay to the City three percent (3%) of the gross quarterly receipts received from all sales of gas by Grantee within the corporate limits of the City arising from Grantee's use, operation or possession of this franchise and grant. Such quarterly payments shall be in lieu of taxes, fees, permits or charges (other than ad valorem taxes) related to easements, franchises, rights -of -way, utility lines and equipment installation, maintenance and removal during the term of the public service provider's 6 - ORDINANCE franchise with the City, which the City may impose for the rights and privileges herein granted or for the privilege of doing business within the City. Within thirty (30) days after the end of each calendar quarter, Grantee shall file with the City a report, verified by the affidavit of the general manager, auditor, treasurer, or assistant treasurer of said Grantee, which report shall contain a statement in such form and detail as shall from time to time be prescribed by the City, of all the gross receipts arising from all sales of gas by said Grantee within the City for the calendar quarter preceding such report. At the same time the Grantee shall pay to the City the stipulated percentage of the gross quarterly receipts due for the quarter for which said report is made and filed. SECTION VII. GRANTEE LIABILITY - INDEMNIFICATION Grantee agrees to defend and save the City harmless from all loss sustained by the City on account of any action, suit, judgment, execution, claim or demand whatsoever, resulting from negligence on the part of the Grantee in the construction, operation or maintenance of its gas system within the City or otherwise caused by Grantee's use or exercise of rights and privileges hereunder. The City shall notify Grantee within ten (10) days after the presentation of any claim or demand, either by suit or otherwise, against the City on account of any negligence as aforesaid on the part of the Grantee, provided that the City's failure to timely provide such notice shall not cause Grantee to be relieved from its 7 -- ORDINANCE obligations hereunder unless such untimeliness substantially and materially prejudices Grantee's ability to respond to such claim, demand or suit. SECTION VIII. INSURANCE Upon acceptance of this franchise by Grantee and before Grantee shall exercise any rights hereunder, Grantee shall file with the City Clerk a certificate evidencing the insurance of the Grantee having limits of liability of not less than $500,000.00 for property damage, $500,000 per person for bodily injury or death and $1,000,000.00 total for each occurrence. Such certificate shall also evidence that an endorsement to such policy has also been issued, naming the City as an insured thereon, and for the same limits of liability, insuring the City from any wrongful act or liability caused by Grantee's negligent acts or omissions. Such endorsement shall further provide that such coverage shall not be terminated without at least thirty (30) days advance written notice being delivered to the City. In the event the limits of liability under the Idaho Tort Claims Act (Idaho Code Section 6-901, et seq., hereafter referred to as the "ITCH") are increased at any time during the term hereof, then the limits of liability for the insurance policy required of Grantee hereunder shall be increased in the same proportion that the new limit of liability under the ITCA bears to the present limit of liability under such Act. 8 - ORDINANCE SECTION IX. SAFETY REGULATION COMPLIANCE Grantee shall comply with and conform to all health and safety regulations promulgated by the United States, the State of Idaho, or the City of Iona, or any other regulatory body having jurisdiction thereof. SECTION X. AGREEMENT NOT TO COMPETE - RESERVE TO CITY POWER OF EMINENT DOMAIN In consideration of Grantee's undertaking hereunder as evidenced by its acceptance hereof, the City agrees not to engage in the business of distributing and selling gas during the life of this franchise or any extension thereof in competition with the Grantee, its successor and assigns; but nothing herein contained shall be construed or deemed to prevent the City from exercising at any time any power of eminent domain granted to it under the laws of the State of Idaho. SECTION XI. SURRENDER OF FRANCHISE In the event natural gas at any time shall cease to be available to Grantee for the distribution and sale hereunder, Grantee reserves the right to surrender this franchise and in the event of such surrender prior to any expiration or termination of this franchise, or in any of such events, Grantee reserves the right to salvage all of its plant, works and facilities, and 9 - ORDINANCE will promptly restore City's streets and alleys damaged by such salvage operation to the same condition they existed prior to the commencement of such salvage operation. SECTION XII. WRITTEN ACCEPTANCE The Grantee shall within thirty (30) clays after passage and publication of this Ordinance, file with the City Clerk its acceptance of this franchise in writing signed by its proper officers and attested by its corporate seal. In the event Grantee fails to file such acceptance, then this ordinance shall become null and void without further action by the City Council. SECTION XIII. SALE OR ASSIGNMENT OF FRANCHISE No sale or assignment of this franchise shall be effective until it is approved by the City; provided, however, such permission shall not be unreasonably withheld by the City and provided further that nothing herein contained shall be construed as to require consent or to prevent the Grantee of this franchise and grant from including it in a mortgage or trust deed executed for the purpose of obtaining money for corporate objects. No grantee in any Sheriff's deed or in any Trustee's Deed may exercise the rights and privileges herein, without the express prior approval of the City. 10 - ORDINANCE SECTION XIV. PUBLICATION COSTS Within thirty (30) days after the publication of this franchise as required by law and the delivery of an invoice to Grantee, Grantee shall reimburse the City for all costs of publication of this ordinance. SECTION XV. FORFEITURE Any violation by the Grantee, its vendee, lessee or successors of the provisions of this Ordinance, franchise and grant or any material portions thereof or the failure promptly to perform any of the provisions thereof shall be cause for the forfeiture of this franchise and grant and all rights hereunder by the City after (60) days' written notice to the Grantee and the continuance of such violation, failure or default; however, this provision shall not prevent the Grantee from submitting such question of forfeiture to proper court determination. SECTION XVI. SEVERABILITV If any part or parts of this Ordinance shall be determined by a court of competent jurisdiction to be unconstitutional or invalid for any reason, such determination shall not affect the validity of any other part or parts hereof which can be given effect without the part or parts adjudged to be unconstitutional or invalid. The City declares that it would have passed the remaining parts of this Ordinance if it had been known that such other part or parts thereof would be declared unconstitutional or invalid. 1 I - ORDINANCE SECTION XVII. REPEAL All ordinances and parts or ordinances of City in conflict herewith shall be, and the same are hereby repealed. SECTION XVIII NOTICE All notices given or required to be given under the terms hereof, shall be delivered to either party at the following addresses, or such other address as shall be delivered in writing to the sending party, to wit: The City of Iona P. O. Box 487 Iona, Idaho 83427 Intermountain Gas Company P. O. Box 7608 Boise, Idaho 84707 Delivery of such notice shall be presumed complete upon its deposit in the United States mail, addressed as set forth above with proper postage affixed, certified mail, return receipt requested. SECTION XXIX EFFECTIVE DATE This ordinance shall become effective upon its passage, execution and publication in the manner required by law. 12 - ORDINANCE PASSED BY THE CITY COUNCIL , 1995. APPROVED BY TIIE MAYOR , 1995 SEAL City Clerk 13 - ORDINANCE ACCEPTANCE INTERMOUNTAIN GAS COMPANY, as franchisee, accepts the franchise set forth in the above Ordinance and agrees to abide by the terms and conditions thereof. DATED this day of August, 1995. INTERMOUNTAIN GAS COMPANY By: Its: Executive Vice President 14 - ORDINANCE STATE OF IDAHO County of Bonneville I, RONALD NELSON, CITY CLERK OF THE CITY OF IONA, IDAHO, DO HEREBY CERTIFY: That the above and foregoing is a full, true and correct copy of the Ordinance entitled, "AN ORDINANCE OF THE CITY OF IONA, IDAHO, GRANTING TO INTERMOUNTAIN GAS COMPANY A THIRTY (30) YEAR EXTENSION TO ITS FRANCHISE TO CONSTRUCT, MAINTAIN AND OPERATE A GAS TRANSMISSION AND DISTRIBUTION SYSTEM; PROVIDING FOR THE USE OF STREETS AND ALLEYS, AND RULES GOVERNING THE SAME, SUBJECTING THE GRANTEE TO ALL POWERS OF THE CITY; SETTING FORTH THE RULES OF THE FRANCHISE AND GRANT; PROVIDING FOR THE RIGHT OF INSPECTION BY THE CITY OF GRANTEE'S PLANS, ACCOUNTS, AND BOOKS; REQUIRING GRANTEE TO FURNISH CERTAIN MAPS; SETTING FORTH THE QUARTERLY PAYMENT TO THE CITY, AND THE FILING OF QUARTERLY REPORTS WITH THE CITY; REQUIRING GRANTEE TO INDEMNIFY CITY, AND FILE EVIDENCE OF INSURANCE; REQUIRING COMPLIANCE WITH SAFETY REGULATIONS; SETTING FORTH AN AGREEMENT NOT TO COMPETE, RESERVING POWER OF EMINENT DOMAIN; PROVIDING FOR SURRENDER OF FRANCHISE; GRANTING RIGHT TO SALVAGE; REQUIRING WRITTEN ACCEPTANCE; PROVIDING FOR CONSENT TO SALE OR 15 - ORDINANCE ASSIGNMENT; PROVIDING FOR PAYMENT OF PUBLICATION COST; SETTING FORTH PENALTIES AND FORFEITURES, SEPARABILITY AND REPEAL." y (1-&60, Ronald Nelson City Clerk G:\WPDATA\D W S\3400\FRAN0702.ORD: 16 - ORDINANCE NOTICE OF PROPOSED GAS FRANCHISE ORDINANCE Pursuant to the provisions of Idaho Code Section 50-329, notice is hereby given that a proposed Gas Franchise Ordinance has been introduced before the City Council of the City of Iona, said proposed Ordinance being in the form attached hereto as Exhibit "A". Comments thereon may be delivered to the offices of the City Clerk at the Iona City Hall, or by mailing the same to the Iona City Clerk, P. O. Box 487, Iona, Idaho 83427. All such comments shall be delivered to the City Clerk on or before August 23, 1995. DATED this Z °t 11 day of July, 1995. Li; w . Ronald Nelson City Clerk G:\W PDATA\D W S\3400\ORD0712.NOT: cs