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2872ORDINANCE NO. 2872 AN ORDINANCE OF THE CITY OF MOSES LAKE GRANTING CASCADE NATURAL GAS CORPORATION, A WASHINGTON CORPORATION, ITS SUCCESSORS, GRANTEES, AND ASSIGNS, THE NONEXCLUSIVE RIGHT, PRIVILEGE, AUTHORITY, AND FRANCHISE TO CONSTRUCT, OPERATE, MAINTAIN, REMOVE, REPLACE, AND REPAIR EXISTING PIPELINE FACILITIES, TOGETHER WITH EQUIPMENT AND APPURTENANCES THERETO, FOR THE TRANSPORTATION AND DISTRIBUTION OF NATURAL GAS PRODUCTS AND BYPRODUCTS WITHIN AND THROUGH THE CITY OF MOSES LAKE. WHEREAS, Cascade Natural Gas Corporation (hereinafter "Grantee") has applied for a nonexclusive Franchise to operate and maintain a natural gas pipeline within and through the City of Moses Lake (hereinafter the "City" or "Grantor"); and, WHEREAS, the state statutes and City ordinances authorize the City to grant nonexclusive Franchises; NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Moses Lake as follows: Section I. Definitions For the purposes of this Franchise and all exhibits attached hereto, the following terms, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural include the singular, and words in the singular include the plural. Words not defined shall be given their common and ordinary meaning. 1.01 Construct or Construction shall mean installing new, removing, replacing, and repairing existing pipeline(s) and/or Facilities and may include, but is not limited to, digging and/or excavating for the purposes of installing new, removing, replacing, and repairing existing pipeline(s) and/or Facilities. 1.02 Effective Date shall mean the date designated herein, after passage, approval and legal publication of this Ordinance and acceptance by Grantee, upon which the rights, duties and obligations shall come in effect and the date from which the time requirement for any notice, extension and/or renewal will be measured. 1.03 Facilities shall mean the Grantee's natural gas pipe, pipeline system, lines, valves, mains, fixtures, communication systems and any and all other equipment, appliances, appurtenances and other items necessary, convenient or relating to the transmission, distribution, and sale of Grantee's natural gas product(s). 1.04 Franchise shall mean this Franchise and any amendments, exhibits, or appendices to this Franchise. 1.05 Franchise Area means all rights-of-way for public roads, streets, avenues, alleys, and highways of the City as now laid out, platted, dedicated, acquired, or improved; all rights-of-way for public roads, streets, avenues, alleys, and highways that may hereafter be laid out, platted, dedicated, acquired , or improved within the present limits of the City and as may be annexed into the limits hereafter; and all City owned utility easements dedicated for the placement and location of various utilities , provided such easement permits Grantee to fully exercise the rights granted under this Franchise within the area covered by the easement. 1.06 Hazardous Substance shall mean any hazardous, toxic, or dangerous substance, material, waste, pollutant, or contaminant. The term shall also be interpreted to include any substance which, after release into the environment, will or may reasonably be anticipated to cause death , disease, injury, illness, behavior abnormalities, or genetic abnormalities. 1.07 Maintenance or Maintain shall mean examining, testing, inspecting, repairing, maintaining and replacing the existing pipeline(s) and/or Facilities or any part thereof as required and necessary for safe operation. 1.09 Public Properties shall mean the present and/or future property owned or leased by Granter within the present and/or future corporate limits or jurisdictional boundaries of the Granter. 1.1 O Operate or Operations shall mean the use of Grantee's existing pipeline(s) and/or Facilities for the transportation, distribution and handling of natural gas products or byproducts within and through the Franchise Area. 1.11 Rights-of-Way means the surface and the space above and below streets, roadways, highways, avenues, courts, lanes, alleys, sidewalks, easements, rights-of-way and similar public property and areas located within the Franchise Area. Section 2. Grant of Authority 2.01 Granter hereby grants to Grantee, a corporation organized and existing under and by virtue of the laws of the State of Washington and which is authorized to transact business within the State of Washington, its successors and assigns (as provided in Section 4), the right, privilege, authority and Franchise to Construct, Operate and Maintain its existing pipeline(s) and/or Facilities necessary for the transportation, distribution, and handling of any natural gas product or byproduct thereof, within the Franchise Area. 2.02 This Franchise is non-exclusive. Granter reserves all rights to its property, including, without limitation, the right to grant additional Franchises, easements, licenses and permits to others, provided that the Granter shall not grant any other Franchise, license, easement, or permit that would unreasonably interfere with Grantee's permitted use under this Franchise. This Franchise shall in no manner prohibit the Granter or limit its power to perform work upon its Rights-of-Way, Public Properties. or make all necessary changes, relocations, repairs, maintenance, establishment, improvement thereto, or from using any of the Rights-of Way and Public Properties, or any part of them, as the Granter may deem fit from time to time, including the dedication, establishment, maintenance and improvement of all new Rights-of-Way and other Public Properties of every type and description. 2.03 This Franchise is conditioned upon the terms and conditions contained herein and Grantee's compliance with all applicable federal, state, or other regulatory programs that currently exist or may hereafter be enacted by any regulatory agencies with jurisdiction over the Grantee. 2.04 By granting this Franchise, the Granter is not assuming any risks or liabilities of Grantee, which shall be solely and separately borne by Grantee. Grantee agrees and covenants to, at its sole cost and expense, take all reasonably prudent steps to protect, support, and keep safe from harm its pipeline(s) and/or Facilities, or any part thereof, when necessary to protect the public health and safety. 2.05 This Franchise is intended to convey only a limited right and interest. It is not a warranty of title or interest in Grantor's Rights-of Way or other Public Property. None of the rights granted herein shall affect the Grantor's jurisdiction over its property, streets, or Rights-of-Way. 2.06 This franchise does not and shall not convey any right to Grantee to install its Facilities on , under, over, across, or to otherwise use city owned or leased properties of any kind, either within or outside the Franchise Area, other than existing public rights of way. 2.07 The limited rights and privileges granted under this Franchise shall not convey any right to Grantee to install any new pipeline(s) or Facilities without the express written consent of Granter. Section 3. Term 3.01 Each of the provisions of this Franchise shall become effective upon the Effective Date, subject to Grantee's acceptance of the terms and conditions of this Franchise and shall remain in effect for ten (10) years thereafter. This shall be referred to as the primary term. The franchise will automatically renew for successive periods of five (5) years each (successive terms) unless cancelled at the end of a term by either party by written notice to the other party no less than 180 calendar days prior to the end of the primary term or the then current successive term. Section 4. Assignment and Transfer of Franchise 4.01 This franchise shall not be transferred or assigned without the express consent of the Grantor by ordinance, wh ich approval shall not be unreasonably withheld. 4.02 No transfer shall be approved unless the assignee or transferee has at least the legal, technical , financial, and other requisite qualifications to carry on the activities of the Grantee. 4.03 Any transfer or assignment of this Franchise without the prior written consent of the City shall be void and shall result in revocation of the Franchise. Section 5. Compliance with Laws and Standards 5.01 In carrying out any authorized activities under the privileges granted herein, Grantee shall meet generally accepted industry standards and comply with all applicable laws of any governmental entity with jurisdiction over the pipeline and its operation. This shall include all applicable laws, rules and regulations existing at the Effective Date of this Franchise or that may be subsequently enacted by any governmental entity with jurisdiction over Grantee and/or the pipeline(s) and Facilities. 5.02 In the case of any conflict between the terms of this Franchise and the terms of Grantor's ordinances, codes, regulations, standards and procedures, this Franchise shall govern. 5.03 That the rates to be charged for gas for light, power, heat and other purposes by the Grantee, and character of the service to be rendered by the Grantee shall be in accordance with Grantee's applicable rate tariffs and otherwise as approved by the Washington Utilities and Transportation Commission or other agency of said state having jurisdiction over said matters under the laws thereof. Section 6. Construction and Maintenance 6.01 All pipeline Construction, Maintenance, or Operation undertaken by Grantee, upon Grantee's direction or on Grantee's behalf shall be completed in a workmanlike manner. 6.02 Except in the case of an emergency, prior to commencing any Construction and/or Maintenance work in the Franchise Area, the Grantee shall first file with the Grantor such detailed plans, specifications and profiles of the intended work to be done, showing the location and nature of the installation to be made, repaired, or maintained, and a schedule showing the times of beginning and completion and shall secure a permit from the City before proceeding with any such work. Granter may require such add itional information, plans and/or specifications as are in Grantor's opinion necessary to protect the public health and safety during the Construction and/or Maintenance work and for the remaining term of this Franchise. The grantee shall conform to all requirements of Chapter 12.16 -Street and Utility Construction Permits. 6.03 All Construction and/or Maintenance work shall be performed in conformity with the plans, maps and specifications filed with the Grantor, except in instances in which deviation may be allowed thereafter in writing pursuant to an application by the Grantee. 6.04 All pipe and other components of any Facilities used in Construction and/or Maintenance activities within the Franchise Area shall comply with applicable federal regulations, as from time to time amended. 6.05 Except in the event of an emergency, Grantee shall provide Grantor at least ten (10) calendar days written notice prior to any Construction and/or Maintenance, or other substantial activity, other than routine inspections and maintenance, by Grantee, its agents, employees, or contractors on Grantee's pipeline(s) or Facilities within the Franchise Area. 6.06 To the extent required by Section 6.02 hereof, such Construction or Maintenance work shall only commence upon the issuance of applicable permits by the City, which permits shall not be unreasonably withheld or delayed. However, in the event of an emergency requiring immediate action by Grantee for the protection of the pipeline(s) or Facilities, Grantor's property, or other persons or property, Grantee may proceed without first obtaining the normally required permits. In such event Grantee must (1) take all reasonably prudent steps to protect, support, and keep safe from harm its pipeline(s) and/or Facilities, or any part thereof; Grantor's property; or other persons or property, and to protect the public health and safety; and (2) as soon as possible thereafter, must obtain the required permits and comply with any mitigation requirements or other conditions in the after-the-fact permit. 6.07 Unless such condition or regulation is in conflict with a federal requ irement, the Grantor may condition the granting of any permit or other approval that is required under this Franchise, in any manner reasonably necessary for the safe use and management of the public right-of-way or the Grantor's property including, by way of example and not limitation, bonding, maintaining proper distance from other utilities, protecting the continuity of pedestrian and vehicular traffic and protecting any Rights-of-Way improvements, private facilities and public safety. 6.08 Whenever necessary, after Constructing or Maintaining any of Grantee's pipeline(s) or Facilities within the Franchise Area, the Grantee shall, without delay, and at Grantee's sole expense, remove all debris and restore the surface as nearly as possible to as good or better condition as it was in before the work began. Grantee shall replace any property corner monuments, survey reference, or hubs that were disturbed or destroyed during Grantee's work in the areas covered by this Franchise. Such restoration shall be done in a manner consistent with applicable codes and laws, under the supervision of the Grantor and to the Grantor's satisfaction and specifications. 6.09 Grantee shall continuously be a member of the State of Washington one number locator service under RCW 19.122, or an approved equivalent, and shall comply with all such applicable rules and regulations. Grantee shall provide reasonable notice to the City prior to commencing any Maintenance or Construction under this Franchise and additionally to those owners or other persons in control of property in the Franchise Area when the Maintenance or Construction will affect access or otherwise impact the property. 6.1 O Grantee shall bear any costs associated with locating its Facilities. 6.11 Grantee shall provide detailed as-built design drawings showing the size and location of all pipes, valves, gauges, other service appurtenances and Facilities within the Franchise Area. It is understood that the location of the Facilities shall be verified by excavating if exact alignment is required. 6.12 Nothing in this Franchise shall be deemed to impose any duty or obligation upon Grantor to determine the adequacy or sufficiency of Grantee's plans and designs or to ascertain whether Grantee's proposed or actual construction, testing, maintenance, repairs, replacement, or removal is adequate or sufficient or in conformance with the plans and specifications reviewed by Grantor. 6.13 Grantee shall be solely and completely responsible for workplace safety and safe working practices on its job sites within the Franchise area, including safety of all persons and property during the performance of any work. 6.14 Grantee shall at all times keep up-to date maps and records showing the location and sizes of all gas mains, lines, and service connections laid by it in said City. Such maps and records shall be kept in grantee's district operating office and shall be subject to inspection at all reasonable times by proper officials or agents of said City, and be made available within 48 hrs. Grantee shall provide at the City's request a copy of facilities maps for the city's use. 6.15 All mains and other lines of the grantee shall be laid in accordance with current City public works regulations and project permit requirements. Pipelines when probable must maintain (parallel) five (5) feet separation from city water and sewer mains. Grantee agrees to pay all costs and expenditures required for a period of five (5) years thereafter as a result of settling, subsidence, or any other need for repairs or maintenance resulting from excavations made by Grantee. Section 7. Operations, Maintenance, Inspection, Testing 7.01 Grantee shall operate, maintain, inspect and test its pipeline(s) and Facilities in the Franchise Area in full compliance with the applicable provisions of all federal, state and local laws, regulations and standards, as now enacted or hereafter amended, and any other future laws or regulations that are applicable to Grantee's pipeline(s) and Facilities, products and business operations. Section 8. Encroachment Management 8.01 Upon notification to Grantee of planned construction involving excavation or any activity that could abnormally load the pipeline, by either the city or any third party, within fifty (50) feet of Grantee's Facilities, Grantee shall mark the precise location of its Facilities before the construction or activity commences, provide a representative to inspect the construction when it commences, and periodically inspect thereafter to ensure that Grantee's Pipeline is not damaged by the construction or activity. 8.02 Upon the city's reasonable request, in connection with the design of any city public works project, Grantee will verify the exact location of its underground Facilities within the Franchise Area by excavating (pot holing) at no expense to the city. In the event Grantee performs such excavation, the city shall not require any restoration of the disturbed area in excess of restoration to the same condition as existed immediately prior to the excavation. Section 9. Leaks, Spills, Ruptures and Emergency Response 9.01 Grantee shall have in place, at all times during the term of this Franchise, a system for remotely monitoring pressures and flows across the Franchise Area. 9.02 During the term of this Franchise, Grantee shall have a written emergency response plan and procedure for locating leaks, spills, and ruptures and for shutting down valves as rapidly as possible. 9.03 Grantee's emergency plans and procedures shall designate Grantee's responsible local emergency response officials and a direct 24-hour emergency contact number for control center operator. Grantee shall, after being notified of an emergency, cooperate with the Grantor and make every effort to respond as soon as possible to protect the public's health, safety and welfare. 9.04 Grantee shall be solely responsible for all necessary costs incurred by city, county, special district, or state agencies in responding to any rupture, spill, or leak from Grantee's pipeline(s) and/or Facilities, including, but not limited to, detection and removal of any contaminants from air, earth , or water, and all actual remediation costs. This section shall not limit Grantees rights or causes of action against any th ird party or parties who may be responsible for a leak, spill or other release of hazardous liquid from Grantees pipeline, including such third party insurers. 9.05 Grantee shall notify Grantor of any uncontained leak, spill or rupture, outside of a vault or pump station, of natural gas product from its pipeline(s) and/or Facilities within or affecting the Franchise Area constituting a safety hazard, or a Grade 1 leak as defined by WAC 480-93-18601, as now enacted or hereafter amended, within one (1) business day of its observation or detection. 9.06 Leaks, spills, ruptures and other emergencies shall be investigated as required by applicable state and federal regulations. Section 10. Relocation 10.01 In the event that Grantor undertakes or approves the construction of or changes to the grade or location of any water, sewer, or storm drainage line, street, sidewalk, or other City improvement project or any governmental agency or any person or entity acting in a governmental capacity, or on the behalf of, under the authority of, or at the request of the Grantor or any other governmental agency, undertakes any improvement project and the Grantor determines that the project might reasonably require the relocation of Grantee's Facilities, Grantor shall provide the Grantee at least ninety (90) calendar days prior written notice or such additional time as may reasonably be required, of such project requiring relocation of Grantee's pipeline(s) and/or Facilities. 10.02 Gran tor shall provide Grantee with copies of pertinent portions of the plans and specifications for the improvement project. Upon request, Grantee shall, at its cost and expense, determine and identify for Grantor the exact location of its pipeline(s) and Facilities potentially affected by the improvement project. 10.03 Grantee may, after receipt of written notice requesting a relocation of its Facilities, submit to the City written alternatives to the relocation within thirty (30) calendar days of receiving the plans and specifications. The City shall evaluate the alternatives and advise Grantee in writing if one or more of the alternatives is suitable to accommodate the work that would otherwise necessitate relocation of the Facilities. If requested by the City, Grantee shall submit additional information to assist the City in making the evaluation. The City shall give each alternative proposed by Grantee full and fair consideration but retains full discretion to decide for itself whether to utilize its original plan or an alternative proposed by Grantee. In the event the City ultimately determines that there is no other reasonable alternative, Grantee shall relocate its Facilities as proposed by the city. 10.04 If any City improvement project is required in the interest of public health, safety, welfare, or necessity, the Grantee shall make such changes as required herein at Grantee's sole cost, expense and risk. 10.05 Grantor shall work cooperatively with Grantee in determining a viable and practical route within which Grantee may relocate its Facilities, in order to minimize costs while meeting Grantor's project objectives. 10.06 Grantee shall complete relocation of its Facilities so as to accommodate the improvement project at least ten (1 O) calendar days prior to commencement of the improvement project or such other time as the parties may agree in writing. Section 11 . Removal, Abandonment in Place 11.1 In the event of Grantee's permanent cessation of use of its pipeline(s) and/or Facilities, or any portion thereof, within the Franchise Area, the Grantee shall, within one hundred and eighty days (180) after the cessation of use, remove the pipeline, Facilities or any portion thereof unless Grantor has given written authorization to abandon the pipeline and/or Facilities in place. Any pipeline authorized to be abandoned in place shall, at a minimum, be purged and sealed in compliance with any applicable laws or regulations. No pipelines and/or Facilities shall be abandoned in place within the same right of way that any new or replacement pipelines and/or Facilities are to be located. 11 .2 In the event of the removal of all or a portion of the pipeline(s) or Facilities, Grantee shall restore the Franchise Area to as good or better condition as it was in before the work began. 11 .3 Removal and restoration work shall be done at Grantee's sole cost and expense and to Grantor's reasonable satisfaction. Grantee shall be responsible for any environmental review required for the removal of any pipeline(s) and/or Facility and the payment of any costs of the environmental review. 11.4 If Grantee is required to remove its pipeline(s) and/or_Facilities and fails to do so and/or fails to adequately restore the Franchise Area or other mutually agreed upon action(s), Grantor may, after reasonable notice to Grantee, remove the pipeline(s) and/or Facilities, restore the premises and/or take other action as is reasonably necessary at Grantee's expense. This remedy shall not be deemed to be exclusive and shall not prevent the City from seeking a judicial order directing that the Facilities be removed. 11 .5 With the express written consent of the Grantor, the Grantee may purge its pipeline(s) and Facilities, as directed by Grantor, and abandon them in place. Grantee shall be responsible for any environmental review required for the abandonment of any pipeline(s) and/or Facilities and the payment of any costs of such environmental review. Grantor's consent to the abandonment of Facilities in place shall not relieve the Grantee of the obligation or costs to remove or to alter such Facilities in the future in the event it is reasonably determined that removal or alterations is necessary or advisable for the health and safety of the public, in which case the Grantee shall perform such work at no cost to the Grantor. 11.6 The parties expressly agree that paragraph 11 .5 shall survive the expiration, revocation or termination of this Franchise. Section 12. Violations, Remedies and Termination 12.01 In addition to any rights set out elsewhere in this Franchise, or other rights it may possess at law or equity, the Grantor reserves the right to apply any of the following remedies, alone or in combination , in the event Grantee violates any material provision of this Franchise. The remedies provided for in this Franchise are cumulative and not exclusive; the exercise of one remedy shall not prevent the exercise of another, or any rights of the Grantor at law or equity. 12.02 Granter may terminate this Franchise if Grantee materially breaches or otherwise fails to perform, comply with or otherwise observe any of the terms and conditions of this franchise, or fails to maintain all required licenses and approvals from federal, state, and local jurisdictions, or fails to promptly pay all taxes legally levied by the City, and fails to cure such breach or default within thirty (30) calendar days of Grantor's providing Grantee written notice thereof, or, if not reasonably capable of being cured within thirty (30) calendar days, within such other reasonable period of time as the parties may agree upon. 12.03 This Franchise shall not be terminated except upon a majority vote of the full membership of the City Council, after reasonable notice to Grantee and an opportunity to be heard, provided that if exigent circumstances necessitate immediate termination, the hearing may be held as soon as possible after the termination. 12.04 In the event of termination under this franchise, Grantee shall immediately discontinue operation of the pipeline through the Franchise Area. Either party may in such case invoke the dispute resolution provisions herein. Alternatively, either party may elect to seek relief directly in Superior Court, in which case the dispute resolution requirements shall not be applicable in this limited situation. 12.05 Grantor's failure to exercise a particular remedy at any time shall not waive Grantor's right to terminate, assess penalties, or assert that or any other remedy at law or equity for any future breach or default of Grantee. 12.06 Termination of this franchise shall not release Grantee from any liability or obligation with respect to any matter occurring prior to such termination, nor shall such termination release Grantee from any obligation to remove or secure the pipeline pursuant to this Franchise and to restore the Franchise Area. 12.07 The parties acknowledge that the covenants set forth herein are essential to this Franchise, and, but for the mutual agreements of the parties to comply with such covenants, the parties would not have entered into this Franchise. The parties further acknowledge that they may not have an adequate remedy at law if the other party violates such covenant. Therefore, the parties shall have the right, in addition to any other rights they may have, to obtain in any court of competent jurisdiction injunctive relief to restrain any breach or threatened breach or otherwise to specifically enforce any of the covenants contained herein should the other party fail to perform them. Section 13. Dispute Resolution 13.01 In the event of a dispute between Granter and Grantee arising by reason of this Franchise, the dispute shall first be referred to the operational officers or representatives designated by Granter and Grantee to have oversight over the administration of this Franchise. The officers or representatives shall meet within thirty (30) calendar days of either party's request for a meeting, whichever request is first, and the parties shall make a good faith effort to attempt to achieve a resolution of the dispute. 13.02 If the parties fail to achieve a resolution of the dispute, either party may then pursue any available judicial remedies, provided that if the party seeking judicial redress does not substantially prevail in the judicial action, it shall pay the other party's reasonable legal fees and costs incurred in the judicial action. Section 14. Indemnification 14.01 General Indemnification. Grantee shall indemnify, defend and hold harmless Granter from any and all liability, loss, damage, cost, expense, and claim of any kind, including reasonable attorneys' and experts' fees incurred by Granter in defense thereof, arising out of or related to, directly or indirectly, the installation, construction, operation, use, location, testing, repair, maintenance, removal, or abandonment of Grantee's pipeline(s) and/or Facilities, or from the existence of Grantee's pipeline and other appurtenant Facilities, and the products contained in, transferred through, released or escaped from said pipeline and appurtenant Facilities, including the reasonable costs of assessing such damages and any liability for costs of investigation, abatement, correction, cleanup, fines, penalties, or other damages arising under any environmental laws. If any action or proceeding is brought against Granter by reason of the pipeline(s) or its appurtenant Facilities, Grantee shall defend the Granter at the Grantee's complete expense, provided that, for uninsured actions or proceedings, defense attorneys shall be approved by Grantor, which approval shall not be unreasonably withheld. 14.02 Environmental Indemnification. Grantee shall indemnify, defend and save Grantor harmless from and against any and all liability, loss, damage, expense, actions and claims, either at law or in equity, including, but not limited to, costs and reasonable attorneys' and experts' fees incurred by Grantor in defense thereof, arising directly or indirectly from (a) Grantee's breach of any environmental laws applicable to the pipeline or (b) from any release of a hazardous substance on or from the pipeline or (c) other activity related to this Franchise by Grantee, its agents, contractors or subcontractors. This indemnity includes but is not limited to (a) liability for a governmental agency's costs of removal or remedial action for hazardous substances; (b) damages to natural resources caused by hazardous substances, including the reasonable costs of assessing such damages; (c) liability for any other person's costs of responding to hazardous substances; (d) liability for any costs of investigation, abatement, correction, cleanup, fines, penalties, or other damages arising under any environmental laws; and (e) liability for personal injury, property damage, or economic loss arising under any statutory or common-law theory. Section 15. Insurance and Bond Requirements 15.01 During this Franchise, Grantee shall provide and maintain, at its own cost, insurance in the minimum amount of TEN MILLION UNITED STATES DOLLARS ($10,000,000.00) for each occurrence, in a form and with a carrier reasonably acceptable to the Grantor, naming Grantor as an additional insured, to cover any and all insurable liability, damage, claims and loss as set forth in Section 14.01 above, and, to the extent such coverage is reasonably available in the commercial marketplace, all liability, damage, claims and loss as set forth in Section 14.02 above, except for liability for fines and penalties for violation of environmental laws as otherwise provided below. Insurance coverage shall include, but is not limited to, all defense costs. Such insurance shall include, but is not limited to, pollution liability coverage, at a minimum covering liability from sudden and accidental occurrences, subject to time element reporting requirements, and such other applicable pollution coverage as is reasonably available in the commercial marketplace. 15.02 Grantee shall furnish the Granter with original certificates and a copy of the amendatory endorsements, including the additional insured endorsement, evidencing the insurance requirements of the Grantee as required by this Agreement, prior to the beginning of any work, testing or construction or reconstruction on the Pipeline. Said insurance shall contain a provision that it shall not be canceled without a minimum of thirty (30) days prior written notice to the Granter. Grantee shall, upon Grantor's request at any time during the term of this Agreement, produce a complete copy of the insurance policy and all amendatory endorsements for Grantor's review and inspection at Grantor's offices in Moses Lake, Washington in order for Grantor to verify insurance coverage as required by this Agreement. If determined necessary by the Grantor, such as in the event of an incident and/or claim, Grantee shall immediately (within seven business days) provide the insurance policy, including, but not limited to, coverage terms and claims procedures, to the Grantor. 15.03 The indemnity, insurance and bond provisions contained herein shall survive the termination of this Franchise and shall continue for as long as the Grantee's Facilities shall remain in or on the Franchised Areas or until the parties execute a new Franchise Agreement which modifies or terminates these indemnity, insurance and bond provisions. Section 16. Receivership and Foreclosure 16.01 Grantee shall immediately notify the Grantor in writing if it: files a voluntary petition in bankruptcy, a voluntary petition to reorganize its business, or a voluntary petition to effect a plan or other arrangement with creditors; files an answer admitting the jurisdiction of the Court and the material allegations of an involuntary petition filed pursuant to the Bankruptcy Code, as amended; or is adjudicated bankrupt, makes an assignment for the benefit of creditors, or applies for or consents to the appointment of any receiver or trustee of all or any part of its property including all or any parts of its business operations, pipeline(s) or Facilities within or affecting the Franchise Area. 16.02 Upon the foreclosure or other judicial sale of all or a substantial part of Grantee's business operations, pipeline(s) or Facilities within or affecting the Franchise Area, or upon the termination of any lease covering all or a substantial part of the pipeline(s) or Facilities within or affecting the Franchise Area, or upon the occasion of additional events which effectively cause termination of Grantee's rights or ability to operate the pipeline(s) or Facilities within or affecting the Franchise Area, Grantee shall notify the Granter of such fact, and such notification or the occurrence of such terminating events shall be treated as a notification that a change in control of the Grantee has taken place, and the provisions of this Franchise Agreement governing the consent of the Grantor to such change in control of the Grantee shall apply. 16.03 The Granter shall have the right to cancel this Franchise one hundred twenty (120) days after the appointment of a receiver or trustee to take over and conduct the business of a Grantee, whether in receivership, reorganization, bankruptcy, or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred twenty (120) days, or unless: a) Within one hundred twenty ( 120) days after the election or appointment, such receiver or trustee shall have fully complied with all of the provisions of this Franchise Agreement and remedied any existing violations and/or defaults; and b) Within said one hundred twenty (120) days, such receiver or trustee shall have executed an agreement, duly approved by the court having jurisdiction, whereby such receiver or trustee assumes and agrees to be bound by each and every provision of this Franchise Agreement granted to the Grantee except where expressly prohibited by Washington law. Section 17. Legal Relations 17.01 Nothing contained in this Franchise shall be construed to create an association, trust, partnership, agency relationship, or joint venture or to impose a trust, partnership, or agency duty, obligation or liability on or with regard to any party. Each party shall be individually and severally liable for its own duties, obligations, and liabilities under this Franchise. 17.02 Grantee accepts any privileges granted by Granter to the Franchise Area, public Rights-of- Way and other Public Property in an "as is" condition. Grantee agrees that the City has never made any representations, implied or express warranties or guarantees as to the suitability, security or safety of Grantee's location of facilities or the facilities themselves in public property or rights of way or possible hazards or dangers arising from other uses of the public rights of way or other public property by the City or the general public. Grantee shall remain solely and separately liable for the function, testing, maintenance, replacement and/or repair of the pipeline or other activities permitted under this Franchise. 17.03 Grantee waives immunity under Title 51 RCW in any cases involving the Granter and affirms that the Granter and Grantee have specifically negotiated this provision, to the extent it may apply. 17.04 This Franchise shall not create any duty of the City or any of its officials, employees or agents and no liability shall arise from any action or fa ilure to act by the City or any of its officials, employees or agents in the exercise of powers reserved to the Grantor. Further, this ordinance is not intended to acknowledge, create, imply or expand any duty or liability of the Granter with respect to any function in the exercise of its police power or for any other purpose. Any duty that may be deemed to be created in the City shall be deemed a duty to the general public and not to any specific party, group or entity. 17 .05 This Franchise shall be governed by, and construed in accordance with, the laws of the State of Washington and the parties agree that in any action, except actions based on federal questions, venue shall lie exclusively in Grant County, Washington. Section 18: Public Records Act 18.01 Grantee acknowledges that the City is subject to the Public Records Act, chapter 42.56 RCW (the "Act"). All records owned, used (including inspection of Grantee's records), or retained by the City are public records subject to disclosure unless exempt under the Act, whether or not such records are in the possession or control of the City or Grantee. Grantee shall cooperate with the City so that the City may comply with all of its obligations under the Act. Within ten (10) days after receipt of notice from the City, Grantee shall deliver to the City copies of all records relating to this Franchise that qualify as the City's public records under the Act. If the City receives a public records request relating to this Franchise, the City shall seek to provide notice to Grantee at least ten (10) days before the City releases records pursuant to such public records request, but in no event will the City have any liability to Grantee for any failure of the City to provide timely notice. In addition to its other indemnification and defense obligations under this Franchise, Grantee shall indemnify and defend the City from and against any and all losses, penalties, fines, claims, demands, expenses (including , but not limited to, attorney's fees and litigation expenses), suits, judgments, or damage arising from or relating to any failure of Grantee to comply with this Section. Section 19: Miscellaneous 19.01 In the event that a court or agency of competent jurisdiction declares a material provision of this Franchise Agreement to be invalid, illegal or unenforceable, the parties shall negotiate in good faith and agree, to the maximum extent practicable in light of such determination, to such amendments or modifications as are appropriate actions so as to give effect to the intentions of the parties as reflected herein. If severance from this Franchise Agreement of the particular provision(s) determined to be invalid, illegal or unenforceable will fundamentally impair the value of this Franchise Agreement, either party may apply to a court of competent jurisdiction to reform or reconstitute the Franchise Agreement so as to recapture the original intent of said particular provision(s). All other provisions of the Franchise shall remain in effect at all times during which negotiations or a judicial action remains pending. 19.02 Whenever this Franchise sets forth a time for any act to be performed, such time shall be deemed to be of the essence, and any failure to perform within the allotted time may be considered a material violation of this Franchise. 19.03 In the event that Grantee is prevented or delayed in the performance of any of its obligations under this Franchise by reason(s) beyond the reasonable control of Grantee, then Grantee's performance shall be excused during the Force Majeure occurrence. Upon removal or termination of the Force Majeure occurrence the Grantee shall promptly perform the affected obligations in an orderly and expedited manner under this Franchise or procure a substitute for such obligation or performance that is satisfactory to Grantor. Grantee shall not be excused by mere economic hardship nor by misfeasance or malfeasance of its directors, officers or employees. 19.04 The Section headings in this Franchise are for convenience only, and do not purport to and shall not be deemed to define, limit, or extend the scope or intent of the Section to which they pertain. 19.05 By entering into this Franchise, the parties expressly do not intend to create any obligation or liability, or promise any performance to, any third party, nor have the parties created for any third party any right to enforce this Franchise. 19. 06 This Franchise and all of the terms and provisions shall be binding upon and inure to the benefit of the respective successors and assignees of the parties. 19.07 Whenever this Franchise calls for notice to or notification by any party, the same (unless otherwise specifically provided) shall be in writing and directed to the recipient at the address set forth in this Section, unless written notice of change of address is provided to the other party. If the date for making any payment or performing any act is a legal holiday, payment may be made or the act performed on the next succeeding business day which is not a legal holiday. Notices shall be directed to the parties as follows: To the Grantor: City of Moses Lake ATTN: City Manager 401 S. Balsam P.O. Box 1579 Moses Lake, WA 98837 To the Grantee: Cascade Natural Gas ATTN: Region Director 200 N. Union Street Kennewick, WA 99336-2212 19.08 The parties each represent and warrant that they have full authority to enter into and to perform this Franchise, that they are not in default or violation of any permit, license, or similar requirement necessary to carry out the terms hereof, and that no further approval, permit, license, certification, or action by a governmental authority is required to execute and perform this Franchise, except such as may be routinely required and obtained in the ordinary course of business. 19.09 This Franchise Agreement and the attachments hereto represent the entire understanding and agreement between the parties with respect to the subject matter and it supersedes all prior oral negotiations between the parties. This Franchise Agreement can be amended, supplemented, modified or changed only by an agreement in writing which makes specific reference to the Franchise Agreement or the appropriate attachment and which is signed by the party against whom enforcement of any such amendment, supplement, modification or change is sought. All previous Franchise Agreements between the parties pertaining to Grantee's Operation of its pipeline(s) and/or Facilities are hereby superseded. 19.10 Grantee shall, within thirty (30) days after passage of this Ordinance, file with the City Clerk, its unconditional written acceptance of all the terms and conditions of this Franchise. If Grantee shall fail to so file its written acceptance within such period, then the rights and privileges granted hereunder shall be deemed forfeited. 19.11 The Effective Date of this Franchise shall be the __ day of , 2017, after passage, approval and five (5) days after legal publication of this Ordinance as provided by law, and provided it has been duly accepted by Grantee as herein above provided. ADOPTED by the City Council and signed by its Mayor on the 241h day of October, 2017. Kar~/M~ ATIEST: Cisi&in.~ Date of Publication: ________ , 2017. UNCONDITIONAL ACCEPTANCE BY GRANTEE: I, the undersigned official of Cascade Natural Gas Corporation, am authorized to bind Cascade Natural Gas Corporation and to unconditionally accept the terms and conditions of the foregoing Franchise (Ordinance No. ), which are hereby accepted by Cascade Natural Gas Corporation this __ day of , 2017. CASCADE NATURAL GAS CORPORATION By: __________ _ Subscribed and sworn to before me this ___ day of ______ , 2017. Notary Public in and for the State of Washington My commission expires ______ _ Received on behalf of the City this ___ day of __________ , 2017.