City renews Intermountain Gas agreement

Published in The Aberdeen Times March 19, 2014.
ORDINANCE NO. 295
CITY OF ABERDEEN, IDAHO
AN ORDINANCE OF THE CITY OF ABERDEEN, IDAHO, GRANTING TO INTERMOUNTAIN GAS COMPANY A TEN (10) 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; RIGHT TO ADDITIONAL PAYMENTS TO 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 COSTS; SETTING FORTH PENALTIES AND FORFEITURES, SEPARABILITY AND REPEAL.
BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE CITY OF ABERDEEN CITY, 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 ten (10) 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 Aberdeen, 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 has the sole power and authority to make this grant of authority and agrees to notify Grantee in writing if the City should cease to have this power.
SECTION II – USE OF STREETS AND RULES GOVERNING SAME
Grantee shall secure a permit for any opening it shall make in the streets, alleys and public places in the City and shall be subject to all applicable ordinances, but no fee shall be required of Grantee for any such permit. The location or relocation of all facilities shall be made under the supervision and with the approval of such representative as the governing body of the City may designate for such purpose, but not so as unreasonably to interfere with the proper operating of Grantee’s facilities and service. 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 conduit, water main, sewer or water connection or other City public works or City utility, it shall be the duty of the Grantee when so ordered by the City to change 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 the conduits, sewers and other mains 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 there from is first paid to Grantee. 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. Whenever the City grants a permit for an excavation in a street or alley or other public ground and the work contemplated by the permit may expose gas pipes, mains and appurtenances of the Grantee, the City shall furnish a copy of the permit to Grantee at least 48 hours prior to such work.
SECTION III – GRANTEE SUBJECT TO ALL POWERS OF CITY; RULES 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 regulatory ordinances adopted pursuant thereto. The 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. The Grantee shall maintain, repair and keep in good condition for a period of three years from the date of acceptance by the City, all portions of streets and alleys disturbed by it or its agents. The 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 proper notice to Grantee demanding removal is not promptly 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.
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 ten (10) years from July 1st, 2014 through and including June 30th, 2024.
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. The Grantee shall furnish, upon request, the City with a complete 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 said Grantee, 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 through use, operation or possession of this franchise and grant.
Such quarterly payments shall be in lieu of taxes, fees 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 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.
The Grantee shall file 30 days after the end of each calendar quarter with the City a report for the preceding calendar quarter, which report shall contain a statement of all the gross receipts arising from all sales of gas by said Grantee within the City for the calendar quarter preceding such report, and at the same time the Grantee shall pay to the City the stipulated percentage of the gross quarterly receipts due for the calendar quarter which said report is made and filed.
SECTION VII – RIGHT TO ADDITIONAL PAYMENTS TO CITY
In the event that Grantee shall in conjunction with any other similar franchise agreement, pay any other city within the State of Idaho any percentage greater than hereinbefore provided, then and in such event, the City shall be entitled to collect from Grantee such higher percentage of gross annual sales, based upon Grantee’s gross annual sales within the city for the same period of time for which such other city is entitled to receive such higher percentage.
SECTION VIII– GRANTEE LIABILITY – INDEMNIFICATION
It is expressly understood and agreed by and between the Grantee and the City that the Grantee shall save the City harmless from all loss sustained by the City on account of any 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 in the City. The City shall notify the grantee’s representative in the City within ten (10) days after the presentation of any claim or demand, either by suit or otherwise, made against the City on account of any negligence as aforesaid on the part of the Grantee.
SECTION IX – INSURANCE
Upon acceptance of this franchise by Grantee and before Grantee shall have any rights hereunder, Grantee shall file with the City Clerk a certificate evidencing the insurance of the Grantee against property damage in an amount not less than $1,000,000.00 and bodily injury with limits of not less than $1,000,000.00 per person and $2,000,000.00 total for each occurrence. Provided, however, the minimum limits of insurance as set forth herein shall be automatically increased at any time the liability limits of the City are increased pursuant to the Idaho Tort Claims Act (Idaho Code Section 6-901 et. Seq.) or any similar legislation.
SECTION X – SAFETY REGULATION COMPLIANCE
Grantee shall comply with and conform to all safety regulations promulgated by the United States, State of Idaho or City of Aberdeen, or any regulatory body having jurisdiction thereof.
SECTION XI – AGREEMENT NOT TO COMPETE
RESERVE TO CITY POWER OF EMINENT DOMAIN
In consideration if 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 XII – 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 will restore City’s streets and alleys damaged by such salvage operation.
SECTION XIII– WRITTEN ACCEPTANCE
The Grantee shall within thirty (30) days after the 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.
SECTION XIV – SALE OR ASSIGNMENT OF FRANCHISE
No sale or assignment of this franchise shall be effective until it is approved by the City, provided, however, 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.
SECTION XV – PUBLICATION COSTS
The Grantee shall assume the cost of publication of this franchise as such publication is required by law.
SECTION XVI – 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 sixty (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 XVII – SEPARABILITY
If any part or parts of this ordinance shall be adjudged by the courts to be unconstitutional or invalid, the same 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 of parts thereof would be declared unconstitutional or invalid.
SECTION XVIII – REPEAL
All ordinances and parts of ordinances of the City in conflict herewith shall be, and the same are hereby repealed.
PASSED BY THE CITY COUNCIL OF THE CITY OF ABERDEEN, IDAHO AND APPROVED BY THE MAYOR THIS 11th DAY OF MARCH, 2014.
A. Morgan Anderson
Mayor
ATTEST:
Linda Balls
City Clerk
ACCEPTANCE
INTERMOUNTAIN GAS COMPANY, as the franchisee, accepts the franchise set forth in the above Ordinance and agrees to abide by the terms and conditions thereof.
DATED this 14th day of March, 2014
INTERMOUNTAIN GAS COMPANY
By: Tim Clark
Its: Vice President – Operations
ATTEST:
Monica Thomas

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