HomeMy WebLinkAboutA5. Ordinance 1935 NWEnergy Franchise
Page 1
Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Karen Stambaugh
Assistant City Attorney
SUBJECT: Ordinance No. 1935 – Grant of nonexclusive franchise to NorthWestern Energy for natural gas delivery
MEETING DATE: February 8, 2016
AGENDA ITEM TYPE: Action
RECOMMENDATION: Provisionally Adopt Ordinance No. 1935
Recommended Motion: I hereby move to provisionally adopt Ordinance No. 1935 granting to
NorthWestern Energy a non-exclusive franchise and fixing the terms thereof under which
NorthWestern Energy may construct, equip, lay, maintain and operate natural gas delivery
facilities in, under, upon, over and across streets, avenues, alleys, highways, bridges, easements
and other public places in the City of Bozeman and may deliver and sell natural gas.
Alternative Motion (approving NorthWestern Energy’s request for an exception to Resolution No. 4250): I hereby move to provisionally adopt Ordinance No. 1935, as amended by request of
NorthWestern Energy, granting to NorthWestern Energy a non-exclusive franchise and fixing the
terms thereof under which NorthWestern Energy may construct, equip, lay, maintain and operate
natural gas delivery facilities in, under, upon, over and across streets, avenues, alleys, highways,
bridges, easements and other public places in the City of Bozeman and may deliver and sell
natural gas.
BACKGROUND:
Grant of Non-Exclusive Franchise: NorthWestern Corporation (d/b/a NorthWestern Energy) has
requested that the City grant them a nonexclusive franchise for their natural gas facilities
installed in the public rights of way. The City has previously granted such a franchise to NorthWestern Energy’s predecessor, the Montana Power Company; a 30-year franchise granted on December 28, 1930, and a 50-year franchise which was effective on January 20, 1961 and
expired on January 20, 2011. NorthWestern is now seeking a 10-year renewable nonexclusive
franchise on similar terms.
The draft franchise agreement has been reviewed and approved by the Director of Public Works.
393
Page 2
Requested Revision to Nondiscrimination Provision Required by Resolution No. 4250: On
March 29, 2010, the Commission adopted Resolution No. 4250 making it the City’s policy to
require a prohibition in “all written agreements” (with certain narrow exceptions) against
discrimination in the fulfillment of the agreement on the basis of race, color, religion, creed, sex, age, marital status, national origin, or actual or perceived sexual orientation, gender identity or disability. The nondiscrimination provision must clearly indicate that this prohibition also
applies to all subcontracts. Section 2 of Resolution No. 4250 authorizes the Commission to
make exceptions to this policy on a case-by-case basis.
NorthWestern has requested an exception to Resolution No. 4250 so that it may qualify the subcontractor requirement with “best efforts” language. NorthWestern has requested that rather than being required to include this nondiscrimination provision in its contracts with any
subcontractors performing NorthWestern’s obligations under the Franchise Agreement, it be
required to “use best efforts” to require these nondiscrimination terms in subcontracts. Please
see attached email dated January 20, 2016 from NorthWestern explaining the reasons for this request.
NorthWestern’s requested revision to the nondiscrimination provision required by Resolution
No. 4250 is contained in the last sentence of Section 11 of the Ordinance; the remainder of the
nondiscrimination provision is unchanged. NorthWestern’s requested addition is underlined
below:
Section 11. Nondiscrimination. Franchisee will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination
laws, regulations, and contracts. Hiring must be on the basis of merit and qualifications, and
Franchisee will not refuse employment to a person, bar a person from employment, or
discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when
the reasonable demands of the position require an age, physical or mental disability, marital
status or sex distinction. Franchisee shall use best efforts to require these nondiscrimination
terms in contracts executed after the Effective Date with its sub-contractors performing Franchisee’s obligations under this Franchise.
ALTERNATIVES: As directed by the Commission.
UNRESOLVED ISSUES: None identified.
FISCAL EFFECTS: None identified.
Attachments:
1. Draft Ordinance No. 1935.
2. Commission Resolution No. 4250.
3. Email from Heather Bellamy of NorthWestern Energy dated January 20, 2016.
Report compiled on: February 1, 2016
394
ORDINANCE 1935
Page 1 of 5
ORDINANCE NO. 1935
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN,
MONTANA, GRANTING TO NORTHWESTERN CORPORATION d/b/a/
NORTHWESTERN ENERGY A NON-EXCLUSIVE FRANCHISE AND FIXING THE
TERMS THEREOF UNDER WHICH SAID COMPANY MAY CONSTRUCT, EQUIP,
LAY, MAINTAIN AND OPERATE NATURAL GAS DELIVERY FACILITIES IN,
UNDER, UPON, OVER AND ACROSS STREETS, AVENUES, ALLEYS, HIGHWAYS,
BRIDGES, EASEMENTS AND OTHER PUBLIC PLACES IN THE CITY OF
BOZEMAN, MONTANA, AND MAY DELIVER AND SELL NATURAL GAS.
BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF
BOZEMAN, MONTANA: Section 1. Grant of Franchise. There is hereby granted to NorthWestern Corporation
d/b/a NorthWestern Energy, its successors, and assigns ( “Franchisee”), the non-exclusive right,
privilege, and franchise (collectively the “Franchise”) under the terms contained herein to
construct, equip, lay, maintain and operate in, under, upon, over and across the streets, avenues, alleys, highways, bridges, easements and other public places controlled by the City in the City of Bozeman, Montana, ( “City”), as now or hereafter constituted, natural gas delivery facilities for
the purposes of transporting, conveying, distributing, supplying and selling natural gas services
for heat, power and other purposes. Such natural gas services shall be provided at rates fixed and
allowed by the Montana Public Service Commission, and Franchisee agrees to make publicly available the schedules of rates thus fixed or allowed as required by the laws of Montana. Nothing herein shall be construed to prevent City from granting other like or similar rights or
privileges to any other person or business entity.
Section 2. Compliance with Regulations. Franchisee agrees to construct and maintain all natural gas delivery facilities according to current industry standards and in compliance with all applicable codes, rules, regulations, statutes, and orders of local, state, and federal agencies
having jurisdiction in such matters. If any provision of this Franchise shall conflict with Federal
or State law, the Federal or State law shall control.
Section 3. Service.
(a) Franchisee shall extend its natural gas delivery facilities to such parts of the City as
the provision of Franchisee’s natural gas services shall justify.
(b) Franchisee, at all times during the existence of this Franchise, shall use its best efforts to obtain, deliver and supply a continuous, sufficient and adequate quantity of natural gas for use
by said City and Franchisee’s customers, provided, however, that Franchisee shall not be liable
395
ORDINANCE 1935
Page 2 of 5
to said City or to Franchisee’s customers because of the interruption or discontinuance of the
supply of natural gas by causes beyond the reasonable control of Franchisee.
(c) Franchisee shall not discontinue the delivery of natural gas through its natural gas delivery facilities, or any portion thereof, for an unreasonable length of time for the purpose of making repairs and extensions, but Franchisee shall not be liable to the City or any of
Franchisee’s customers for damages caused by such temporary discontinuance or interruption of
the delivery of natural gas, provided that such repairs and extensions are made with reasonable
efforts. Franchisee shall use its best efforts to notify the City and its customers if such temporary discontinuance or interruption occurs for a period greater than twenty four (24) hours.
Section 4. Construction, Maintenance, and Restoration. All work done in, under, upon,
over, and across the present and future streets, avenues, alleys, highways, bridges, easements,
and other public places in the City (as such may be controlled by the City) by Franchisee for the purposes of carrying out the provisions of this Franchise shall be done and performed in a safe and professional manner. Where feasible, Franchisee shall provide advance written notice to
City of all plans for work to be performed pursuant to this Franchise and when possible,
coordinate with City in order to minimize public inconvenience and disruption. For each work
location, Franchisee shall apply for and obtain a permit from the City’s Public Works Department to excavate streets, alleys, sidewalks and other public rights-of-way in accordance with City code.
When any street, alley, or other public place in the City is excavated or damaged by
Franchisee by reason of such work, Franchisee shall restore, at its own expense, such street, alley, or public place to its former condition as early as practicable. If such restoration is not completed within a reasonable time or does not meet city standards, City may, after thirty (30)
days’ prior written notice to Franchisee, perform or cause to be performed the necessary
restoration to current city standards, and Franchisee agrees to reimburse the City for its costs and
expenses in so doing. If at any time a change in the grade or plan of any street, alley, or public place shall be
made by order of the proper City officials, Franchisee shall, without expense to the City, make
such changes in the location of its natural gas delivery facilities as the change of the grade or
plan of the street, alley, or public place makes necessary, which said changes shall be made as soon as possible after said Franchisee shall have received notice from the proper City official having the charge of the same.
Section 5. Abandonment. All underground abandoned lines shall remain the property of
Franchisee. Franchisee will assist the city in the identification and evaluation of abandoned lines as required to facilitate construction of any municipal project. If requested by the City, Franchisee shall remove, at its own expense, abandoned lines when required to facilitate
396
ORDINANCE 1935
Page 3 of 5
construction of any municipal project or as the City determines is reasonably necessary to protect
public health and safety.
Section 6. Indemnification. To the fullest extent permitted by law, Franchisee shall indemnify, defend, and hold the City, its officers, employees and agents harmless from all costs, fees, liabilities, expenses (including reasonable attorney fees) and damages which shall or may
accrue to said City by reason of the neglect, default, or misconduct of the Franchisee, its
employees and agents in connection with the exercise of its rights hereunder.
Section 7. Insurance. Franchisee shall maintain throughout the term of this Franchise general liability insurance in the minimum amount of $1,000,000 per claim, $2,000,000 per
occurrence to adequately insure and/or protect the legal liability of Franchisee with respect to the
installation, operation and maintenance of the natural gas delivery facilities contemplated by this
Franchise. Franchisee shall file with the City, within thirty (30) days following the effective date of this Franchise, and annually thereafter, proof of City’s endorsement as an additional insured on a primary non-contributory basis on the policy.
Section 8. Assignment. Franchisee may not make assignments of this Franchise, and its
rights hereunder, without prior written consent of the City, which will not be unreasonably withheld. All assignees shall agree to be bound to the same extent as the original Franchisee.
Section 9. Default; Alternative Dispute Resolution. Except as provided in this
paragraph, failure on the part of Franchisee to comply with any provision of this Franchise shall
constitute forfeiture thereof (1) if, within thirty (30) days’ after City’s written notice to Franchisee of such conditions of default, Franchisee fails to cure the default (or, where cure cannot reasonably be completed within that period, commence the cure and diligently pursue the
cure to completion); or (2) if Franchisee disputes the City’s determination that it is in default, the
matter has been fully resolved pursuant to the terms of this section and the Franchisee has failed
to cure any default within six (6) months after the matter has been fully resolved in favor of City. The City Commission, in its discretion, may grant additional time to Franchisee to cure the failure as it deems reasonable.
If the Parties are unable to resolve disputes arising from the terms of this Franchise, prior
to resorting to a court of competent jurisdiction, the parties shall submit the dispute to a non-binding mediator chosen by agreement of the Parties. Unless otherwise agreed to between the Parties, the costs of mediation shall be shared equally.
Should the Parties be unable to resolve the dispute using the above process, either Party
shall be entitled to all appropriate remedies at law and equity, including without limitation specific performance. This Franchise shall be governed by the laws of the State of Montana, and each Party hereby irrevocably consents to the exclusive jurisdiction and venue of the District
397
ORDINANCE 1935
Page 4 of 5
Court of Gallatin County in connection with any dispute hereunder or the enforcement of any
right or obligation hereunder.
Section 10. Term. This Franchise shall be hereby granted for an initial term of ten (10) years from and after the Effective Date as defined in Section 12. Thereafter, this Franchise will automatically renew every ten (10) years for an additional term of ten (10) years, unless
cancelled by either party by written notice to the other party, no less than one (1) year prior to the
end of the then current term.
Section 11. Nondiscrimination. Franchisee will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination
laws, regulations, and contracts. Hiring must be on the basis of merit and qualifications, and
Franchisee will not refuse employment to a person, bar a person from employment, or
discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when
the reasonable demands of the position require an age, physical or mental disability, marital
status or sex distinction. Franchisee shall require these nondiscrimination terms in contracts
executed after the Effective Date with its sub-contractors performing Franchisee’s obligations under this Franchise.
Section 12. Effective Date. This ordinance shall take effect and be in force from and
after thirty (30) days after the final passage and approval hereof, provided Franchisee shall file
with the City Clerk a written acceptance of this ordinance within said thirty (30) day period, but if such acceptance is not so filed, this ordinance shall be void.
Section 13. Repealer. All provisions of the ordinances of the City of Bozeman in conflict
with the provisions of this ordinance are, and the same are hereby, repealed and all other
provisions of the ordinances of the City of Bozeman not in conflict with the provisions of this
ordinance shall remain in full force and effect.
Section 14. Severability. That should any sentence, paragraph, subdivision, clause,
phrase or section of this ordinance be adjudged or held to be unconstitutional, illegal, or invalid,
the same shall not affect the validity of this ordinance as a whole, or any part or provision
thereof, other than the part so decided to be invalid, illegal or unconstitutional, and shall not
affect the validity of the Bozeman Municipal Code as a whole.
Section 15. Codification. This Ordinance shall not be codified but shall be kept by the
City Clerk and entered into a disposition list in numerical order with all other ordinances of the
City.
398
ORDINANCE 1935
Page 5 of 5
PROVISIONALLY ADOPTED by the City Commission of the City of Bozeman, Montana, on
first reading at a regular session held on February 8, 2016.
____________________________________
CARSON TAYLOR Mayor
ATTEST:
_______________________________
STACY ULMEN, CMC City Clerk
FINALLY PASSED, ADOPTED AND APPROVED by the City Commission of the City of
Bozeman, Montana on second reading at a regular session thereof held on
___________________. The effective date of this ordinance is___________________.
__________________________________
CARSON TAYLOR
Mayor
ATTEST:
_______________________________
STACY ULMEN
City Clerk
APPROVED AS TO FORM:
_________________________________
GREG SULLIVAN City Attorney
399
COMMISSIONRESOLUTIONNO. 4250
ARESOLUTIONOFTHECITYCOMMISSIONOFTHECITYOFBOZEMAN,
MONTANA, ADOPTINGAPOLICYPROHIBITINGDISCRIMINATIONINTHE
ENTERINGINTOANDIMPLEMENTATIONOFCONTRACTSANDAGREEMENTS
OFALLKINDSINCLUDINGBIDDINGANDCERTAINPURCHASES.
WHEREAS, TheCityofBozemanisaself-governingmunicipalcorporationorganized
underthelawsoftheStateofMontanaandgovernedbyaCharter, whichwaseffectiveJanuary
1, 2008; and
WHEREAS, InNovember, 2009, theCityofBozemanpassedandadoptedCommission
ResolutionNumber4217declaring "Allarewelcomehere," andcommittingto: 1) supportthe
diversityofthecommunity; 2) promoteinclusivenessinourpublicendeavorsandprivate
actions; and3) worktoendsilenceandstopthespreadofhate, andinsodoingbuildjustand
caringcommunities, congregations, workplaces, schoolsandhomes; and
WHEREAS, on February 8, 2010, the Commissionadopted Resolution4243
establishingpoliciesfordiscriminationinemploymentandbenefitsonthebasisofsexual
orientationand/orgenderidentity, amongotherprotectedcategories; and
WHEREAS, onFebruary8, 2010theCommissiondiscussedoptionsforapplyingsimilar
policiestothosecontainedinResolution4243toavarietyofagreementsandpurchasesthecity
undertakesanddirectedthecitystafftoprepareafinalproposalforensuringthecityandits
contractingpartnersdonotdiscriminateonthebasisofavarietyofcategoriesrelatedto
individuals; and
WHEREAS, theCommissionfindsthatcreationofthesepolicieswillservethepublic
interestbyensuringtheCityofBozemandoesnotdiscriminateonthebasisofrace, color,
religion, creed, sex, age, maritalstatus, nationalorigin, oractualorperceivedsexualorientation,
genderidentityordisability; and
WHEREAS, theCommissionrecognizescircumstancesmayariseintheimplementation
ofthispolicythatwillwarrantspecialexceptions; assuch, theCommissionreservesforitselfthe
determinationofwhenanexceptiontothepolicydescribedbelowmaybemade; and
Resolution4250: PoiicyProhibitingDiscriminationinContractingandOtherAgreements
Page. 1of3
400
WHEREAS, theCommissionrequeststheCityManagerimplementthispolicythrough
administrativepoliciesorthroughaformaladministrativeordersothatthispolicywillbe
distributedtoallCitypersonnelandimplementedexpeditiouslyuponadoption.
NOW, THEREFORE, BEITRESOLVEDbytheCityCommissionoftheCityof
Bozeman, Montana, thatthefollowingpolicyrelatedtodiscriminationinCitycontractsand
otheragreementsisherebyadopted:
Section1: PolicyforDiscriminationinCityAgreements
Allwrittenagreementsincludingbutnotlimitedtocollectivebargainingagreements,
contracts, andleases, enteredintobytheCity, includingagreementsforprofessional
servicesandsolesourceservices, shallincludeaprovisionprohibitingdiscriminationin
thefulfillmentoftheagreementonthebasisofrace, color, religion, creed, sex, age, marital
status, nationalorigin, oractualorperceivedsexualorientation, genderidentityor
disability. Theprovisionshallclearlyindicatethatthecontractingentityorindividualwill
ensurethisobligationpertainstothehiringandtreatmentofthecontractor'semployeesand
toallsubcontracts.
Theaboverequirementshallapplytoallpurchasesofgoodsandequipmentonlywherethe
Cityentersintoasignedwrittenagreement, otherthanapurchaseorderorreceipt, forthe
purchase.
Allrequestsforproposals (RFP), requestsforqualifications (RFQ) andallothernotices
solicitingbidsforconstruction, services, oranyothercontractedservice, shallincludea
provisionrequiringeverysubmittingentitytoaffirmitwillnotdiscriminateasdescribed
hereinandrecognizetheeventualcontractwillprohibitdiscriminationasdescribedherein.
Ifanentitysubmittingabidonaprojectdoesnotaffinninitssubmittalthatitwillcomply
withthisrequirement, theCityshallconsiderthesubmitternon-responsive.
Agreementsfortheexpenditureofpublicfundswhichincludealegalanti-discrimination
requirementotherthanthatrequiredbytheCity, suchasafederalorstaterequirement,
mustincludethediscriminationprovisionrequiredbythefederalorstatelaw, as
appropriate. Ifthefederalorstaterequirementdoesnotincludeadiscriminationcategory
listedhereinsuchassexualorientationorgenderidentitytheagreementmustbeamended
oranaddendumexecutedtoincludethemissingcategory.
TheaboverequirementdoesnotapplytotheCity'sissuanceofgenerallicensessuchas
businessorpetlicensesnorshallitapplytogeneralorspecialpermitsorentitlements
issuedbytheCity. Inaddition, theserequirementsdonotapplywhentheCityentersinto
Resolution4250: PolicyProhibitingDiscriminationinContractingandOtherAgreements
Page2of3
401
agreementstoprovideservicessuchasgarbageorrecyclingservices, toanotherentityor
individual.
Section2: ExceptionstobeMadebyCommission
ExceptionstothispolicymaybemadebytheCityCommissiononacase-by-casebasis.
Section3: implementationbyCityManager
TheCityManagershallimplementthispolicythroughadministrativepoliciesorthrough
administrativeorder.
Datedthis29dayofMarch, 2010.
ATTEST:BO
STA EN,CMC:
CityCl 1883
ty,
C0
APPROVEDASTOFORM:
SULLIVAN
CityAttomey
R:solution4250: Polic) ProhibitingI)iscriminationinContractingandOtherAgreements
Page3of3
402
403
404