ORDINANCE NO. 08A-2016
AN ORDINANCE BY THE GOVERNING BODY OF THE CITY OF RAWLINS, CARBON COUNTY, WYOMING, GRANTING BLACK HILLS GAS DISTRIBUTION, LLC, D/B/A BLACK HILLS ENERGY, ITS SUCCESSORS AND ASSIGNS, A NONEXCLUSIVE FRANCHISE TO CONSTRUCT, OPERATE, REPAIR AND MAINTAIN FACILITIES AND EQUIPMENT FOR THE TRANSPORTATION, DISTRIBUTION, MANUFACTURE AND SALE OF GAS ENERGY FOR PUBLIC AND PRIVATE USE AND TO USE THE PUBLIC WAYS AND GROUNDS OF THE CITY OF RAWLINS, CARBON COUNTY, WYOMING, FOR SUCH PURPOSE; AND, PRESCRIBING CERTAIN TERMS AND CONDITIONS THEREOF.
WHEREAS, Wyoming State Statute §15-1-103 (xii) permits the governing bodies of municipalities to license, tax and regulate any use conducted within the limits of the city; and
WHEREAS, Black Hills Gas Distribution, LLC, d/b/a Black Hills Energy, is a regulated public utility that provides gas energy to the citizens of Rawlins (the “City”) and other surrounding areas;
WHEREAS, providing gas power and energy requires the installation, operation and maintenance of gas lines and other related facilities to be located within the public ways of the City;
WHEREAS, the City desires to set forth the terms and conditions by which Black Hills Gas Distribution, LLC, d/b/a Black Hills Energy shall use the public ways of the City.
THE GOVERNING BODY OF THE CITY OF RAWLINS, CARBON COUNTY, WYOMING, ORDAINS:
SECTION 1 DEFINITIONS.
For purposes of this Ordinance, the following capitalized terms listed in alphabetical order shall have the following meanings:
1.1 City. The City of Rawlins, County of Carbon, State of Wyoming, a Wyoming Municipal Corporation.
1.2 City Utility System. Facilities used for providing public utility service owned or operated by City or agency thereof, including sewer, storm sewer, water service, street lighting, and traffic signals, but excluding facilities for providing heating, lighting, or other forms of energy.
1.3 Commission. The Wyoming Public Service Commission, or any successor agency or agencies.
1.4Company. Black Hills Gas Distribution, LLC, d/b/a Black Hills Energy its successors and assigns including all successors or assigns that own or operate any part or parts of the Gas Facilities subject to this Franchise.
1.5Gas Energy. Gas Energy includes both retail and wholesale natural, manufactured or mixed gas.
1.6Gas Facilities. Gas transmission and distribution pipes, lines, ducts, fixtures, and all necessary equipment and appurtenances owned or operated by the Company for the purpose of providing Gas Energy for retail or wholesale use.
1.7Notice. A writing served by any party or parties on any other party or parties. Notice to Company, shall be mailed to Black Hills Gas Distribution, LLC, d/b/a Black Hills Energy, 1301 W. 24th St., Cheyenne, WY 82001; Notice to the City, shall be mailed to City Clerk, 521 W. Cedar Street, P.O. Box 953, Rawlins, WY 82301. Any party may change its respective address for the purpose of this Ordinance by written Notice to the other parties.
1.8City Regulatory Authority. In addition to the provisions herein contained, the City reserves the right to adopt such additional ordinances and regulations as may be deemed necessary in the exercise of its police power for the protection of the health, safety, and welfare of the its citizens and their properties or exercise any other rights, powers or duties required or authorized under the Constitution of the State of Wyoming, laws of Wyoming or City Ordinance.
1.9Ordinance. This gas franchise ordinance, also referred to as the Franchise.
2.0Public Way. Any highway, street, alley or other public right-of-way within the City.
2.1Public Ground. Land owned or otherwise controlled by the City for utility easements.
SECTION 2 ADOPTION OF FRANCHISE.
2.1 Grant of Franchise. City hereby grants Company, for a period of twenty-five (25) years from the date this Ordinance is passed and approved by the City, a nonexclusive right to import, manufacture, distribute and sell Gas Energy for public and private use within and through the limits of the City as its boundaries now exist or as they may be extended in the future and also the right to transport Gas Energy through the limits of the City for use outside of the City limits. For these purposes, all mains, services, and pipes laid or installed under this grant shall be so located and laid as not to obstruct or interfere with any water pipes, drains, sewers or other structures already installed, and all such mains, services and pipes shall be installed subject to the inspection and advance approval of and in close cooperation and coordination with the City Engineer and the City Utilities Director and in compliance with all applicable City ordinances. All mains shall be laid as near as practical parallel to the uniform grade of the streets, alleys and other Public Ways in such a manner that complies with the federal regulations governing “Cover” (49 CFR Part 192, Section 327), and in such a manner as not to interfere with any preexisting public or private sewers, water pipes, drains, telephone conduits or other public or private improvements or installations, above or below ground.
2.2 Effective Date; Written Acceptance. This Franchise shall be in force and effect from and after the passage of this Ordinance and publication as required by law and its acceptance by Company. If Company does not file a written acceptance with the City within sixty (60) days after the date the City Council adopts this Ordinance, or otherwise inform the City, at any time, that the Company does not accept this Franchise, the City Council by resolution shall revoke this Franchise.
2.3 Previous Franchise. Upon acceptance of this Franchise by Company, this Franchise shall supersede and replace any previous ordinance granting a gas franchise to Company. Ordinance No. 5-95, passed under date of May 2, 1995, is hereby repealed and of no further force or effect. Ordinance No. 12-2004, passed under date of December 21, 2004, is hereby repealed and of no further force or effect.
2.4 Service and Gas Rates. The terms and conditions of service and the rates to be charged by Company for Gas Energy in City are subject to the exclusive jurisdiction of the Commission.
2.5 Publication Expense. Company shall pay the expense of publication of this Ordinance.
2.6 Dispute Resolution. If either party asserts that the other party is in default in the performance of any obligation hereunder, the complaining party shall notify the other party of the default and the desired remedy. The notification shall be written. Representatives of the parties must promptly meet and attempt in good faith to negotiate a resolution of the dispute. If the dispute is not resolved within thirty (30) days of the written Notice, the parties may jointly select a mediator to facilitate further discussion. The parties will equally share the fees and expenses of this mediator. If a mediator is not used or if the parties are unable to resolve the dispute within thirty (30) days after first meeting with the selected mediator, either party may commence an action in District Court to interpret and enforce this Franchise or for such other relief as may be permitted by law or equity.
2.7 Continuation of Franchise. If the City and the Company are unable to agree on the terms of a new franchise by the time this Franchise expires, this Franchise will remain in effect until a new franchise is agreed upon, or until ninety (90) days after the City or the Company serves written Notice to the other party of its intention to allow Franchise to expire. However, in no event shall this Franchise continue for more than one (1) year after expiration of the twenty-five (25) year term set forth in Section 2.1.
SECTION 3 LOCATION, OTHER REGULATIONS.
3.1 Location of Facilities. All Gas Facilities installed or used under authority of this Franchise shall be used, constructed and maintained in accordance with applicable federal, state, and city laws, codes and regulations. Gas Facilities shall be located, constructed, and maintained so as not to interfere with the safety and convenience of ordinary travel along and over Public Ways and so as not to disrupt normal operation of any City Utility System. Gas Facilities may be located on Public Grounds in a location selected by the City. The location and relocation of Gas Facilities shall be subject to reasonable regulations of the City consistent with authority granted the City to manage its Public Ways and Public Grounds under state law, to the extent not inconsistent with the terms of this Franchise, specifically Sections 3.3, 3.4 and 3.5 herein. All Gas Facilities shall be located so as to cause minimum interference with the public ways of the City and shall be constructed, installed, maintained, cleared of vegetation, renovated or replaced in accordance with applicable rules, ordinances and regulations of the City.
3.2 Street Openings. Company shall not open or disturb the surface of any Public Way or Public Ground for any purpose without first having obtained a permit from the City, if required by a separate ordinance, for which the City may impose a reasonable fee. Permit conditions imposed on Company shall not be more burdensome than those imposed on other public-right-of-way users for similar facilities or work. Company will abide by all applicable ordinances and all reasonable rules, regulations and requirements of the City, and the City may inspect the manner of such work and require remedies as may be reasonably necessary to assure compliance. Company may, however, open and disturb the surface of any Public Way or Public Ground without a permit if (i) an emergency exists requiring the immediate repair of Gas Facilities and (ii) Company gives telephone, email or similar Notice to the City before commencement of the emergency repair, if reasonably possible. Within two (2) business days after commencing the repair, Company shall apply for any required permits and pay any required fees. If during the course of work on its Gas Facilities, Company causes damage to or alters the public way or public property, Company shall (at its own cost and expense and in a manner reasonably approved by the City) replace and restore it in as good a condition as existed before the work commenced.
3.3 Relocation and Removal of Company Facilities.
(a)City reserves the right to require Company to relocate its Company’s Facilities within the Public Ways in the interest of public convenience, necessity, healthy, safety and welfare at no cost to the City. Any relocation or removal of the Company’s facilities in any Public Way, Public Ground or other public place required, caused or occasioned by any City project shall be at the cost of the Company. Relocation or removal shall be completed within a reasonable time from the date when the City makes its request, such time to be established by the Company and approved by the City.
(b)In the event abandoned facilities have to be removed, said removal shall be at the cost of the Company.
(c)When relocating its facilities pursuant to this section, the Company shall be granted an extension of time of completion equivalent to any delay caused by conditions or circumstances not under its control provided that the Company has made every attempt to complete the work and proceeds with due diligence at all times. Failure of the Company to provide sufficient personnel, equipment and/or materials to complete the work within the time agreed to will obligate the Company to reimburse the City for costs in accordance with Section 3.4 of this Franchise.
(d)If the City orders or requests the Company to relocate its facilities or equipment for the primary benefit of a commercial or private project, or as a result of the initial request of a commercial or private developer or other non-public entity, and such removal is necessary to prevent interference, then the Company shall receive payment for the cost of such relocation from the commercial or private developer as a precondition to relocating its facilities or equipment.
(e)The City shall consider reasonable alternatives in designing its public works projects and exercising its authority under this section so as not to arbitrarily cause the Company unreasonable additional expense. If alternative Public Way or Public Ground space is available, the City shall also provide a reasonable alternative for the Company’s facilities. The City shall give the Company written notice of an order or request to vacate; provided, however, that its receipt of such notice shall not deprive the Company of its right to operate and maintain its existing facilities in such Public Way until it (a) if applicable, receives the reasonable cost of relocating the same, and (b) obtains a reasonable Public Way, dedicated utility easement, or private easement alternative location for such facilities.
3.4 Reimbursement of Cost. The Company shall reimburse the City for all direct, reasonable and necessary costs incurred by the City as the direct result of the Company’s failure to perform construction in compliance with Section 3 of this Ordinance.
3.5 City Not Required to Advance Funds. Upon receipt of the City’s authorization for billing and construction, the Company shall extend its facilities to provide Gas Energy to the City for municipal uses within the City limits or for any municipal facility outside the City limits, and within the Company’s service area without requiring the City to advance funds prior to construction.
3.6 Restoration. After undertaking any work requiring the opening of any Public Way or Public Ground, the Company shall restore the Public Ways or Public Grounds in accordance with the Commission and Company’s Wyoming Tariff. Company shall restore the Public Ground to as good a condition as formerly existed, and shall maintain the surface in good condition for six (6) months thereafter. All work shall be completed as promptly as weather permits, and if Company shall not promptly perform and complete the work, remove all dirt, rubbish, equipment and material, and put the Public Ground in the said condition, the City shall have, after demand to Company to cure and the passage of a reasonable period of time following the demand, but not to exceed five (5) days, the right to make the restoration of the Public Ways or Public Grounds at the expense of Company. Company shall pay to the City the reasonable cost of such work done for or performed by the City.
3.7 Avoid Damage to Gas Facilities. The Company must take reasonable measures to prevent the Gas Facilities from causing damage to persons or property. The Company must take reasonable measures to protect the Gas Facilities from damage that could be inflicted on the Gas Facilities by persons, property, or the elements. The Company must take protective measures when the City performs work near the Gas Facilities, if given reasonable Notice by the City of such work prior to its commencement.
3.8 Notice of Improvements to Streets. The City will give Company reasonable written Notice of plans for improvements to Public Ways and Public Grounds where the City has reason to believe that Gas Facilities may affect or be affected by the improvement. The Notice will contain: (i) the Public Ways or Public Grounds upon which the improvements are to be made, (ii) the estimated time when the City will start the work, and (iii) if more than one Public Way or Public Grounds is involved, the approximate order in which the work is to proceed. The Notice will be given to Company a sufficient length of time, considering seasonal working conditions, in advance of the actual commencement of the work to permit Company to make, at Company’s sole cost and expense, any additions, alterations or repairs to its Gas Facilities the Company deems necessary.
3.9 Mapping Information. The Company must promptly provide to the City complete and accurate mapping information for any of its Gas Facilities. This map will be replaced each year with a revised map showing the new construction for the previous calendar year or if no new construction took place, as requested by the City.
SECTION 4 INSURANCE.
Company shall have and keep in effect throughout the term of this Franchise, a policy of insurance issued by a company authorized to issue insurance within the State of Wyoming, in favor of the Company with the City named as an additional insured for property damage, personal injury, public liability, and bodily injury arising from the activities contemplated by this Franchise in an amount not less than Five Million and No/100 Dollars ($5,000,000.00). The Company shall file a valid certificate with the City evidencing the existence of insurance as required by this section and shall update that filing annually or sooner if Company changes its insurance carrier within the term of this Franchise.
SECTION 5 INDEMNIFICATION.
5.1 Indemnity of City. Company shall indemnify and hold the City harmless from any and all claims, demands, liens and from all liability, damage, loss and expenses including but not limited reasonable attorney fees and costs necessarily incurred as a result thereof, arising out of the negligence of Company in the construction, removal, replacement, inspection or repair of any mains, pipes, services or appliances of Company, or in the use and operation thereof during the term of this Ordinance. The City shall not be indemnified for losses or claims occasioned through its own negligence or willful misconduct except for losses or claims arising out of or alleging the City’s negligence as to the issuance of permits for, or inspection of, Company’s plans or work.
5.2 Defense of City. In the event a suit is brought against the City under circumstances where this agreement to indemnify applies, Company at its sole cost and expense shall defend the City in such suit if written Notice thereof is promptly given to Company within a period wherein Company is not prejudiced by lack of such Notice. If Company is required to indemnify and defend, it will thereafter have control of such litigation, but Company may not settle such litigation without the consent of the City, which consent shall not be unreasonably withheld. This section is not, as to third parties, a waiver of any defense or immunity otherwise available to the City. The Company, in defending any action on behalf of the City, shall be entitled to assert in any action every defense or immunity that the City could assert in its own behalf. This Franchise shall not be interpreted to constitute a waiver by the City of any of its defenses of immunity or limitations on liability under applicable law.
SECTION 6 VACATION OF PUBLIC WAYS AND PUBLIC GROUNDS.
The City shall give Company at least two weeks prior written Notice of a proposed vacation of a Public Ways or Public Grounds.
SECTION 7 CHANGE IN FORM OF GOVERNMENT.
Any change in the form of government of the City shall not affect the validity of this Ordinance. Any governmental unit succeeding the City shall, without the consent of Company, succeed to all of the rights and obligations of the City provided in this Ordinance.
SECTION 8 FRANCHISE FEE.
8.1 Franchise Fee. In consideration of the rights and privileges herein granted, the Company shall assess, effective the first billing cycle after this Franchise becomes effective, to residential (commonly known as domestic) and commercial customers within the City of Rawlins, Wyoming, a franchise fee equivalent to five percent (5%) of the gross annual receipts of the Company derived from the sale of gas through the franchised pipeline system within the City. Notwithstanding any provision to the contrary, at any time during the term of this Franchise, the City may elect to increase the franchise fee amount as may then be allowed by state law. The City shall provide Company with prior written notice of such increase following the adoption of the change in percentage by the City. The increase shall be effective sixty (60) days after City has provided such written notice to Company. Unless and until the franchise fee is replaced pursuant to this subsection, the then current franchise fee shall remain in full force and effect.
8.2 Collection of Fees. The payment of franchise fees shall be made on a quarterly basis and shall be due forty-five (45) days after the close of each calendar quarter. Any franchise fees owing pursuant to this Franchise which remain unpaid more than forty-five (45) days after the dates specified herein shall be delinquent and shall thereafter accrue interest at twelve percent (12%) per annum.
8.3 Record Inspection. The Company agrees to make available for inspection by the City at reasonable times all records necessary to audit the Company’s determination of the franchise fee payments. Such records shall either be made available at a mutually agreed upon location within the City or, Company shall make said records available to the City in electronic format.
8.4 Continuation of Franchise Fee. If this Franchise expires and the City and the Company are unable to agree upon terms of a new franchise, the franchise fee will remain in effect until a new franchise is agreed upon. If for any reason the franchise terminates, the franchise fee will terminate at the same time.
SECTION 9. ANNEXATION.
9.1 Extension of City Limits. Upon the annexation of any territory to the City, the rights granted herein shall extend to the annexed territory to the extent the City has such authority. All Gas Facilities owned, maintained, or operated by Black Hills Gas Distribution , LLC, located within any Public Ways of the annexed territory shall thereafter be subject to all of the terms hereof.
9.2 Notice of Annexation. When any territory is approved for annexation to the City, the City shall, not later than ten (10) business days after passage of an ordinance approving the proposed annexation, provide by certified mail to Black Hills Gas Distribution, LLC: (a) each site address to be annexed as recorded on county assessment and tax rolls; (b) a legal description of the proposed boundary change; and (c) a copy of the city’s ordinance approving the proposed annexation.
Notice shall be mailed to: Black Hills Gas Distribution, LLC, d/b/a Black Hills Energy,
1301 W. 24th St., Cheyenne, WY 82001.
SECTION 10 ABANDONED FACILITIES.
The Company shall comply with all Commission rules and regulations and all City code provisions, as they may be amended from time to time, with respect to abandoned facilities located in Public Ways and Public Grounds. The Company shall maintain records describing the exact location of all abandoned and retired Gas Facilities within the Public Ways and Public Grounds, produce such records at the City’s request, and comply with the location requirements of state law with respect to all Gas Facilities, including abandoned and retired Gas Facilities not located in Public Ways and Public Grounds.
SECTION 11 PROVISIONS OF ORDINANCE.
11.1 Severability. Every section, sentence, paragraph, term, provision, or part of this Ordinance is declared separate from every other section, sentence, paragraph, term, provision, or part; and if any section, sentence, paragraph, term, provision, or part shall be held illegal, invalid, or superseded by other lawful authority including any state or federal authority having jurisdiction thereof or unconstitutional, illegal or invalid by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision, and such determination shall have no effect on the validity of any other section, sentence, paragraph, term, provision, or part hereof, all of which will remain in full force and effect for the term of the Franchise or any renewal or renewals thereof
11.2 Limitation on Applicability. This Ordinance constitutes a franchise agreement entered into by the City and Company. No provisions herein shall in any way inure to the benefit of any third person (including the public at large) so as to constitute any such person as a third party beneficiary of this Ordinance or of any one or more of the terms hereof, or otherwise give rise to any cause of action in any person not a party hereto.
11.3 Notice of Assignment or Reorganization. Company shall not transfer or assign any rights under this Franchise to another entity, except transfers and assignments by operation of law, or to affiliates, parents or subsidiaries of Black Hills Gas Distribution, LLC, which assumes all of Company’s obligations hereunder, unless the City shall first give its approval in writing, which approval shall not be unreasonably withheld, conditioned or delayed; provided, however Company may, mortgage pledge, hypothecate or otherwise transfer without consent its interest in this Franchise to any financing entity, or agent on behalf of any financing entity to whom Black Hills Gas Distribution, LLC, (i) has obligations for borrowed money or in respect of guaranties thereof, (ii) has obligations for borrowed money or in respect of guaranties, or (iii) has obligations under or with respect to letters of credit, bankers acceptances and similar facilities or in respect of guaranties thereof. Company shall provide the City of written notice of any proposed sale, name change, lease, assignment, disposition or transfer of Company’s natural gas distribution system within the City.
SECTION 12 AMENDMENT PROCEDURE.
Either party may propose at any time that this Franchise Ordinance be amended. Franchise Ordinance may be amended at any time by the City passing a subsequent ordinance declaring the provisions of the amendment, which amendatory ordinance shall become effective upon the filing of Company’s written consent thereto with the City Clerk within thirty (30) days after the effective date of the amendatory ordinance. No amendment or amendments to this Franchise shall be effective until mutually agreed upon by the City and Company and formally adopted as an ordinance amendment.
SECTION 13 CHOICE OF LAW.
This Franchise shall be governed by the laws of the State of Wyoming. Both the Second Judicial District Court, Carbon County, Wyoming and Federal District Courts of Wyoming shall have venue and jurisdiction exclusively for any action in law or equity which may be instituted to enforce the terms of this Franchise.
SECTION 14 GOVERNING RULES AND REGULATIONS.
The franchise granted hereunder is subject to all conditions, limitations and immunities now provided for, or as hereafter amended, and applicable to the operations of a public utility, by state or federal law. The rates to be charged by the Company for service within the present or future corporate limits of the City and the rules and regulations regarding the character, quality and standards of service, including but not limited to natural gas leak detection, emergency service response times or other natural gas service to be furnished by the Company, shall be under the jurisdiction and control of such regulatory body or bodies as may, from time to time, be vested by law with authority and jurisdiction over the rates, regulations and quality and standards of service to be supplied by the City. Provided however, should any judicial, regulatory or legislative body having proper jurisdiction take any action that precludes the Company from recovering from its customers any cost associated with services provided hereunder, then Company and the City shall renegotiate the terms of this Ordinance in accordance with the action taken. In determining the rights and duties of the Company, the terms of this Ordinance shall take precedence over any conflicting terms or requirements contained in any other ordinance enacted by the City.
BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF RAWLINS, CARBON COUNTY, WYOMING that this Ordinance Granting of a Nonexclusive Natural Gas Public Utility Franchise and General Utility Easement to Black Hills Gas Distribution, LLC., is PASSED, APPROVED AND ADOPTED this 16th day of August, 2016.
CITY OF RAWLINS, A WYOMING MUNICIPAL CORPORATION.
Marla K. Brown
City Clerk Robert L. Grauberger Mayor
First Reading: July 19, 2016
Second Reading: August 2, 2016
Public Hearing: August 2, 2016
Third Reading: August 16, 2016
Published: August 24, 2016