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2246ORDINANCE NO. 2246 COUNCIL MEMBER KEPHART INTRODUCED THE FOLLOWING ORDINANCE: AN ORDINANCE OF THE CITY OF BLAIR, WASHINGTON COUNTY, NEBRASKA, GRANTIN TO BLACK HILLS/NEBRASKA GAS UILTTIY COMPANY, LLC DB /A BLACK HILLS ENERGY A DELAWARE CORPORATION, A NONEXCLUSIVE FRANCHISE, FOR A PERIOD OF F lEEN 1 WITH AN OPTION TO EXTEND TIE TERM AN ADDITIONAL FIVE (5) YEARS, REPEALING ALL ORDINANCES OR PARTS OF ORDINANCES IN CONFLICT HEREWITH; PROVIDING WHEN THIS ORDINANCE SHALL BE IN FULL FORCE EFFECT; AND PROVIDING FOR PUBLICATION OF THIS ORDINANCE IN PAMPHLET FORM. BE IT ORDAINED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF BLAIR, NEBRASKA.: SECTION 1. Grant of Franchise. That in consideration of the benefits to be derived from the (hereinafter (h ebraska (h installation and operation of a gas distribution system in the City of Blair, N re is Nebraska anted sometimes designated as "City" and "Grantor"), by City and its inhabitants, the y to Black Hills/Nebraska Gas Utility Company, LLC d/b /a Black Hills Energy, a corporation duly incorporated under the laws of the State of Delaware, and authorized to do business in the State of � Nebraska (hereinafter sometimes designated as "Grantee "), its successors and assigns, the li , permission and authority to lay, install, maintain and operate a gas transmission and distribution system within the limits of City, as the same now exists or may be hereafter extended, during ht term of this franchise; and for this purpose there is hereby further granted to Grantee the right, permission and authority during said period to lay, install, maintain and operate in, upon, over, across and along all of the streets, avenues, alleys, bridges and public places of City all mains, services, pipes, conduits and/or appliances necessary or convenient for transmitting, transporting, g, o distributing and supplying gas for heating, industrial, power conveying ower and other in u pur gas into, through or for which gas may be used, and for the purpose of transmitting, transporting Y g beyond the immediate limits of City to other cities, villages and customers. SECTION 2. Installation of Mains, Services and Pipes. That all mains, services and pipes which shall be laid or installed under this grant shall be located and laid so as not to obstruc su ch interfere with any water pipes, drains, sewers, paving or other structures already installed and al sulcs mains services and pipes shall be laid in place subject to the approval of the Director of Public Wo of the City or subject to the approval of such other representative as City may from time to designate; provided that mains, services and pipes shall be laid in the alleys of City where reasonably practicable. Grantee shall, in doing any work in connection with mains, pip services, avoid, so es and d h ighway, and where far as may be practicable, interfering with the use of any street, alley, or oth er at its own e paving of surface of the street is disturbed for Grantees purposes, Grantee shall, exp p and in a manner satisfactory to the duly authorized representatives of City, replace such paving or surface of the street or alley in as good condition as before the work was commenced. SECTION 3. Construction and Extension of Mains. That Grantee, its successors or assigns, ions of its mains and shall install services, including installation and s hall make such reasonable extens maintenance of reliable meters and other measurement and regulation equipment, as are economically feasible to parties located within City who have requested and received from Grantee approved applications therefore; provided, however, that no obligation shall extend to, or be binding upon Grantee, to construct or extend its mains or farrAsh natural gas or gas service within City if Grantee, is, for any reason, unable to obtain delivery of an adequate supply of natural gas at or near the corporate limits of City to warrant the construction or extension of its mains; provided, ftuther, that when the amount of natural gas supplied to Grantee at or near the City linuts is insufficient to meet the additional firm requirements of connected or new consumers, Grantee shall have the right to prescribe reasonable rules and regulations for allocating the available supply of natural gas for such additional firm requirements to domestic, commercial and industrial consumers, in that order of priority. SECTION 4. Safety Requirements (a) The Company shall at all times employ ordinary care and shall install and maintain in use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries, or nuisances to the public. The City reserves the right to temporarily shut down any work by Company or its contractors on City right of way or property that it deems is necessary for public safety. (b) The Company agrees that when working in any area that may affect the traffic on any street or Highway, that it will provide traffic control in compliance with the Manual on Uniform Traffic Control Devices for Streets and Highways. (c) All structures and all lines, equipment and connection in, over, under, and upon the streets, sidewalks, alleys, and public ways or places of the franchise area, wherever situated or located shall at all times be kept and maintained in a safe, suitable condition, and in good order and repair. SECTION 5. Relocation of Company Facilities. If Grantor elects to alter or change the grade of or otherwise improve any street, alley, public way, public property or public right -of -way, or construct, repair, or reconstruct any sewer or water system therein, Grantee, upon reasonable notice by the Grantor, shall remove, relay and relocate its facilities or equipment at the cost and expense of the Grantee. However, if the Grantor orders the Grantee to relocate its facilities or equipment, said relocation being for the primary benefit of a private individual or entity or for the primary benefit of a private project, the Grantee shall have the right to receive reimbursement for the reasonable cost of such relocation. Grantor shall consider reasonable alternatives in designing its public works projects and exercising its authority under this section so as not to arbitrarily cause Grantee unreasonable additional expense. If alternative public right -of -way space if available, Grantor shall also provide a reasonable alternative location for Grantee's facilities. Grantor shall give Grantee written notice of an order or request to vacate a public right -of -way; provided, however, that its receipt of such notice shall not deprive Grantee of its right to operate and maintain its existing facilities in such public right -of way until it (a) if applicable, receives the reasonable cost of relocating the same and (b) obtains a reasonable public right -of -way, dedicated utility easement, or private easement alternative location for such facilities. SECTION 6. Franchise Term. That this franchise is hereby granted for a period of Fifteen (15) years commencing, with a five (5) year extension unless City notifies Grantee, in writing, within thirty (30) days prior to the last anniversary, and demonstrates that Grantee has failed to act in a prudent and commercially reasonable manner during the initial term. SECTION 7. Insurance. That Grantee shall maintain insurance at all times during term of this franchise and any extension hereof in an amount of not less than ten million dollars ($10,000,000) per occurrence to cover and protect itself and the City as an additional insured from and against all claims, demands, losses, actions, judgments, costs, expenses and liabilities which may arise or result, directly or indirectly, from or by reason of loss, injury or damage to the City, its property, employees or agents, or to other persons or their property on account of or arising from negligence of Grantee in t he laying, installing, removing, inspection or repair of any mains, pipes, service or appliances o Grantee or in the use and operation thereof, provided, however, such coverage and protection shall not extend to claims, demand, loss and expense arising out of the negligence of the City, its employees or agents. It is a condition of this franchise that all policies waive governmental immunity as a defense in any action brought against the insured or any other party to this franchise, and that the City is named in the policies as an additional insured. The Grantee shall file and maintain current Certificates of Insurance for all required coverage with the City at all times showing the specific limits of insurance, coverage and deductibles. SECTION 8. Inspection of Records. That for the purpose of affording City the opportunity to enforce and collect the franchise fee imposed by this Ordinance and any and all fees, taxes or other assessments imposed by City, Grantee shall provide all reasonably requested data and information necessary to ascertain or verify correctness and accuracy of all franchise fees paid; provided, that Grantor shall not exercise such right more than twice per calendar year. If it is determined that a mistake was made in the payment of any franchise fee required hereunder, such mistake shall be corrected promptly upon discovery such that any under- payment by Grantee shall be paid within thirty (30) days of recalculation of the amount due, and any over - payment by Grantee shall be deducted from the next payment of such franchise fee due by such Grantee to Grantor; provided, that neither party shall have the obligation to correct a mistake that is discovered more than one (1) year after the '1- - - -V occurrence herevl. Grantee shall further permit City to inspect during normal business hours, books, records, contracts, and other documents directly related to the Grantee's use of Grantor's public right -of -way. SECTION 9. Regulatory Authority. 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 and Federal law. The rates to be charged by grantee for service within the present or future corporate limits of the Grantor and the rules and regulations regarding the character, quality and standards of service to be supplied by Grantee shall be governed by the State Natural Gas Regulation Act and other applicable Nebraska law. Provided however, should any judicial, regulatory, or legislative body having proper jurisdiction take any action that precludes Grantee from recovering from its customers any cost associated with services provided hereunder, then Grantee and Grantor may renegotiate the terms of this Ordinance in accordance with the action taken. In determining the rights and duties of the Grantee, terms of this Ordinance shall take precedence over any conflicting terms or requirements contained in any other ordinance enacted by the Grantor. The City expressly reserves, and the Grantee expressly recognizes, the City's right and duty to adopt, in addition to the provisions in this franchise, ordinances, rules and regulations as the City deems necessary to exercise its police power for the protection of the health, safety and welfare of its citizens and their properties. Grantee agrees to comply with all lawful ordinances, rules and regulations of the City from time to time enacted or adopted by City that may affect the distribution and sale of gas within the City, the establishing of rates therefore and as may otherwise pertain to the business of Grantee so long as such ordinances, rules and regulations of the City are consistent with the State Natural Gas Regulation Act. Upon request of the City, the Grantee shall make available to the public in the office of the City Clerk of the City current copies of the rates charged to each customer or customer class, the rate tariffs approved by the Nebraska Public Service Commission, and, if requested by City, Grantee's then current service standards, service rules and regulations and service connection and extension policies. SECTION 10. Grantee Holds City Harmless. That Grantee, during the term of this Ordinance, agrees to save harmless the City from and against all claims, demands, losses and expenses arising out of the negligence of Grantee, its employees or agents, in construction, operating, and maintaining its distribution and transmission facilities, equipment , service, or appliances in the use and operation thereof, provided, however, that Grantee need not save harmless the City from claims, demand, loss and expense arising out of the negligence of the City, its employees or agents. SECTION 11. Acceptance of Franchise. That this Ordinance shall be in full force and effect from and after its passage and publication as required by law, and its acceptance by Grantee. If Grantee does not, within sixty (60) days following passage of this Ordinance, express in writing its objection to any term or provisions contained therein, or reject this Ordinance in its entirety, then Grantee sh b e dee�i�ed to have accepted thus Ordin SECTION 12. Rate Schedule. That Grantee shall make available a schedule of rates for gas service and shall furnish gas at the schedule of rates set forth therein or at such other reasonable rates as may be hereafter established from time to time by the Nebraska Public Service Commission under the State Natural Gas Regulation Act. SECTION 13. Franchise Fee. That Grantee shall collect from its customers and pay to the City Treasurer an amount equal to five (5) percent of its gross collected receipts derived from sales or transportation of natural gas delivered within the City after adjustment for the net write -off of uncollectible accounts and corrections of bills theretofore rendered. computed from and after the first day of the billing month following the effective date of this Ordinance. Such payments shall be in lieu of any and all other fees, charges, licenses, taxes or assessments which the City may impose on Grantee for the rights and privileges granted herein or for the privilege of conducting a gas business within the City. Such payments shall be made semi - annually on or before March 1 and September 1 of each year. Such fees shall be recovered by Grantee from its customers in the City as a line item on the customer bill. In the event that, after the effective date of this Ordinance, the business of Grantee in City shall be subjected to any additional taxes measured by its gross revenues from the operation of its business or is lawfully accessed a fee for carrying on such business, or in the event that (i) the rate o Y an tax or (ii) the amount of any fee shall be increased after the effective date of thus Ordinance, Grantee shall be entitled to assess such additional fees or taxes to customers in the City. Within ten (10) days of the date of this ordinance, Grantor shall provide the Grantee with a ma p of its corporate limits (the "Map "). The Map shall be of sufficient detail to assist Grantee in determining whether its customers reside within the Grantor's corporate limits. The Map alon g with Grantee's Geographic Information System (GIS) mapping information shall serve as the sole basis for determining Grantee's obligation hereunder to collect and pay the franchise fee from customers; provided, however, that if Grantors corporate limits are changed by annexation or otherwise, it shall be the Grantee's sole responsibility to (a) update the Map so that such changes are included therein, and (b) provide the updated Map to the Grantee. Grant g obli ation to collect and pay the franchise fee from customers within an annexed area shall not of commence until the later: (a) of sixty (60) days after such Grantees receipt from the Grantor t from an updated Map including such annexed area, or (b) such time after such Grantees p Grantor of an updated Map including such annexed area as is reasonably necessary for such Grantee to identify the customers in the annexed area obligated to pay the franchise fee. The Grantor shall provide copies of annexation ordinances to Grantee on a timely basis to ensur e appropriate ro riate Franchise fee collection from customers within the corporate limits of the city as set forth above. Grantee shall list the franchise fee collected from customers as a separate i e v o e bills for utility service issued to their customers. If at any time the Nebraska ublic Commission or other authority having proper jurisdiction prohibits such recovery, Grantee will no longer be obligated to collect and pay the franchise fee until an alternate lawful franchise t can be negotiated and implemented. In addition, with prior approval of the Grantor, ran ee may reduce the franchise fee payable for natural gas delivered to a specific customer when such reduction is required to attract or retain the business of that customer. SECTION 14. Operative Date. That this Ordinance shall constitute ^ a binding e contract be City and Black Hills/Nebraska Gas Utility Company, LLC d/'b/ a Black 111111- 'E ", successors and assigns, and shall be in full force and take effect (after written acceptance by Grantee in accordance with the provisions of Section 11 above) upon approval and publication which approval and publication shall be written within fifteen (15) days of passage. SECTION 15. All ordinances or parts of ordinances in conflict herewith are hereby repealed. Passed and approved this 25 TH day of June, 2013. CITY OF BLAIR, NEBRASKA r J LiZLH, MAYOR ATTEST: BRENDA WHEELER, CITY CLERK (SEAL) STATE OF NEBRASKA) ) :ss: WASHINGTON COUNTY) BRENDA R. WHEELER hereby certifies that she is the duly appointed, qualified and acting City Clerk of the City of Blair, Nebraska, and that the above and foregoing Ordinance was passed an d approved at a regular meeting of the Mayor and City Council of the City of Blair, Nebraska held on the 25th day of June, 2013. x r . L BRENDA WHEELER, CITY CLERK Acceptance of Franchise The undersigned, BLACK HILLS/NEBRASKA GAS UILITIY COMPANY, LLC D/B /A BLACK HILLS ENERGY, a Delaware corporation, for itself, its successors and assigns, hereby accepts Ordinance No. 2246, granting to BLACK HILLS/NEBRASKA GAS UILITIY COMPANY, LLC DB /A BLACK HILLS ENERGY, a franchise to construct, maintain and operate a system of mains, pipes, services and other appliances in, upon, over, across and along the streets and public places of the City of Blair, Nebraska for the purpose of transmitting, distributing and selling gas for domestic, commercial, industrial and other uses in the City, which was passed and adopted by the City on the 25th day of June, 2013, this acceptance being made in compliance with Section 11 of the Ordinance. CERTIFICATE OF LIABILITY INSURANCE F DATE (MM /DD/YYYY) 06/19/2013 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER 1 -612- 333 -3323 Hays Companies CONTACT NAME: Lori Lock PHONE 612 - 333 -3323 X286 FAX 612- 373 -7270 A/C No Ext : A/C No 80 South 8th Street. Suite 700 E -MAIL llock @ha scorn anies.com ADDRESS: Y P INSURERS AFFORDING COVERAGE NAIC # Minneapolis,-'.MN 55402 INSURERA: LIBERTY MUT INS CO 23043 Lori Lock INSURED Black Hills Corporation and its subsidiaries INSURER B LIBERTY NUT FIRE INS CO 11748 INSURER C ASSOCIATED ELECTRIC & GAS INS SVCS 23043 INSURER D LIBERTY INS CORP 42404 625 9th Street #200 INSURER E: 07/01/14 Rapid City, SD 57701 -2674 INSURER F: MED EXP (Any one person) $ COVERAGES CERTIFICATE NUMRFR- 34254634 R1= VICIr)hI KIl IMRFR- ---- - - - - -- ----- - - - - -- - THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR I TYPE OF INSURANCE ADDL INSR SUBR WVD POLICY NUMBER POLICY EFF MM /DD/YYYY POLICY EXP MM /DD/YYYY LIMITS A GENERAL LIABILITY EB1641437957093 (NON-REG 07/01/1 07/01/14 EACH OCCURRENCE $ 2,000,000 A X COMMERCIAL GENERAL LIABILITY il EB1641437957083 (REG) 07/01/1 07/01/14 DAMAGE TO RENTED PREMISES Ea occurrence $ MED EXP (Any one person) $ CLAIMS -MADE I OCCUR • EXCESS GENERAL LIAB. PERSONAL & ADV INJURY $ 2.000,000 • SIR - $250,000 GENERAL AGGREGATE $ 4,000,000 GENT AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP /OP AGG $ 4,000,000 X POLICY PE LOC $ B AUTOMOBILE LIABILITY AS2641437957033 07/01/13 07/01/14 COMBINED SINGLE LIMIT Ea accident $ 2,000,000 X BODILY INJURY (Per person) $ ANY AUTO ALL OWNED SCHEDULED AUTOS AUTOS BODILY INJURY Per accident ( ) $ HIRED AUTOS NON -OWNED AUTOS PROPERTY DAMAGE Per accident $ C UMBRELLA LIAB OCCUR XL5128702P 07/01/1 07/01/14 EACH OCCURRENCE $ 5,000,000 X X AGGREGATE $ 5,000,000 EXCESS LIAB CLAIMS -MADE DED RETENTION $ $ D WORKERS COMPENSATION AND EMPLOYERS' LIABILITY YIN ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? N❑ NIA WA764D437957043 07/01/1 07/01/14 WCSTAT OTH- X TO BY LIMIT S E E.L. EACH ACCIDENT $ 2,000,000 E.L. DISEASE - EA EMPLOYE $ 2,000,000 (Mandatory in NH) If yes, describe under E.L. DISEASE- POLICY LIMITI $ 2,000,000 DESCRIPTION OF OPERATIONS below DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space is required) Re: Franchise Agreement with City. Excess Liability includes General Liability City of Blair is included as Additional Insured (Excluding Workers' Compensation) as required by written contract, subject to policy terms, conditions, and exclusions., CERTIFICATE HOLDER rAMrrFl I ATIOKI ©1988 -2010 ACORD CORPORATION. All rights reserved. ACORD 25 (2010105) The ACORD name and logo are registered marks of ACORD ddebuhr SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE City of Blair THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. Attn: Rodney A. Storm,City Admin 218 South 16th Street AUTHORIZED REPRESENTATIVE Blair, NE 68008 -1674 USA ©1988 -2010 ACORD CORPORATION. All rights reserved. ACORD 25 (2010105) The ACORD name and logo are registered marks of ACORD ddebuhr