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HomeMy WebLinkAbout16- Ordinance 1935 Northwestern Energy Franchise 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 might, 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. j 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 I 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. s 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 f 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 ORDINANCE 1935 i Page 1 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 ORDINANCE 1935 Page 2 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. I 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 t 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 ORDINANCE 1935 Page 3 of 5 ;t 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 use best efforts to require these nondiscrimination terms in contracts executed after the Effective Date with its subcontractors performing Franchisee's obligations under this Franchise. Franchisee must notify the City when any subcontractor fails to agree to these terms. 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. Seyerability. 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. ORDINANCE 1935 Page 4 of 5 l 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 t Mayor a N ATTJST.< STfAI V4MgN;'CMC,", City er _ FINALLY 1 AS90, ADOPTED AND APPROVED by the City Commission of the City of Bozeman,Montana on second reading at a regular session thereof held on February 22,2016. The effective date of this ordinance is March 23,2016. CARSON TAYLOR Mayor ATTEST: i ST'kj6't7EN' City Clerk:' n APPR VED AS'I ULFORM: ULLIVAN City Attorney 4 t ORDINANCE 1935 Page 5 of 5 f