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2019-14ORDINANCE NO.2019-14 AN ORDINANCE TO GRANT TO WASHINGTON GAS LIGHT COMPANY, A PUBLIC SERVICE CORPORATION DOING BUSINESS IN THE COMMONWEALTH OF VIRGINIA AS WASHINGTON GAS LIGHT COMPANY, ITS SUCCESSORS AND ASSIGNS, THE RIGHT, FOR THE TERM AND UPON THE CONDITIONS HEREIN STATED, TO OCCUPY AND USE THE PUBLIC RIGHTS - OF -WAY, STREETS, HIGHWAYS, PARKS AND OTHER PUBLIC PLACES OF THE CITY FOR THE CONSTRUCTION, MAINTENANCE AND OPERATION WHEREIN OF A SYSTEM OF PIPES, MAINS, VALVES, MANHOLES, CONNECTIONS, METERS AND OTHER EQUIPMENT AND APPLIANCES NECESSARY OR CONVENIENT FOR THE TRANSMISSION, DISTRIBUTION AND SALE OF NATURAL GAS WITHIN THE CORPORATE LIMITS OF THE CITY AS THE SAME NOW EXIST OR MAY HEREAFTER BE EXTENDED OR ALTERED. BE IT ORDAINED by the City Council of the City of Fairfax, Virginia, that a non- exclusive right and franchise is hereby granted by the City of Fairfax, Virginia, a Virginia municipal corporation (the " Lq"), unto Washington Gas Light Company, hereinafter referred to as the " r antee", its successors and assigns, for the term and subject to the conditions and limitations hereinafter stated, to use the streets of the City, and to construct, operate, install, maintain and use, and if now constructed to maintain and use, a system of pipes, mains, valves, manholes, connections, meters, and other equipment and appliances (hereinafter referred to individually and collectively as "Facilities"), in, over, along, on and under the streets of the City, for the purpose of distributing, transmitting and selling gas at any point within the corporate limits of the City as the same now exist or may hereafter be extended or altered. The franchise granted hereby shall be subject to the following terns and conditions: SECTION 1. Such right to distribute and sell gas, and thereby provide service (such term having the definition contained within Title 56 of the Code of Virginia) at regular tariff rates to the government, residents and businesses of the City, shall extend only to such areas of the City as are now or may hereafter be allotted to the grantee for service by authority of a certificate of public convenience and necessity issued by the State Corporation Commission of the Commonwealth of Virginia ("SCC"), and otherwise in accordance with applicable law and regulations. SECTION 2. The Facilities shall be located at reasonably suitable and convenient points. The grantee shall file with the Director of Public Works of the City, or his designee, plans showing the location of proposed additional facilities, and obtain any permit required therefore prior to their construction or installation in, over, along, on and under the streets of the City. Except where the approval of the SCC is required by law, the location of the proposed Facilities shall be subject to review by the City Director of Public Works or his designee with the right on the part of the grantee to appeal from his decision to the City Council. The decision of the City Council on said appeal shall be final and binding as to the location of such facilities. Whenever the City shall determine that it is reasonably necessary in connection with repair, relocation or improvement of streets, sidewalks or appurtenant facilities, the City may require by written notification to the grantee that any facilities of grantee be relocated or removed. Within thirty (30) days after receipt of notification, unless the City Director of Public Works or his designee for good cause extends such time, grantee shall use its best efforts to remove or relocate same, using Iike construction, to such place as shall be mutually agreeable with the City and grantee. Grantee shall bear all costs of removal and relocation; provided, however, that the City will issue, without charge to the grantee, whatever City permits are required for relocation of grantee's facilities. If grantee does not use its best efforts to commence and complete removal or relocation within thirty (30) days, then the City may, after giving at least fifteen (15) days written notice to grantee, take such actions at grantee's expense as are necessary to effect such removal or relocation. Further, except where the grantee maintains facilities which are located on private property by right of recorded easement(s) or equivalent, the grantee shall, when necessary and upon the prior written request of the City Director of Public Works or his designee, abandon in place and relocate, at its own expense, any Facilities which shall impede or interfere with any municipal construction or construction of any municipal -owned equipment, facilities or utilities, provided that the City shall have made reasonable efforts to avoid conflicts with grantee's Facilities in designing such projects. SECTION 3. In the location, erection, operation and maintenance of facilities, as herein authorized, grantee shall avoid all unnecessary damage to the shade trees in and along the streets of the City and shall not cut or otherwise injure said trees to any greater extent than is reasonable necessary. Tree trimming and pruning shall occur only after reasonable advance notification to the City except in response to an emergency. In addition, the type and extent of trimming and pruning shall be in accordance with the requirements of the SCC and shall be approved by the City Director of Public Works or his designee. SECTION 4. In the event grantee shall at any time injure any pavement, sidewalk, or any other public property, it shall immediately notify the Director of Public Works of the City and promptly repair the same at its own cost and expense. In opening the surface of any street and in making any excavation therein for the purpose, the grantee shall not unnecessarily obstruct or impede traffic upon the streets and, except in the case of an emergency situation, shall obtain prior approval from the Director of Public Works or his designee regarding appropriate traffic management plan(s). Grantee shall act diligently in completing the necessary work and immediately thereafter replace the earth removed in a workmanlike manner and shall replace the pavement and sidewalk (as applicable) and repair the same in such reasonable time and as the City Director of Public Works or his designee shall require, and use best efforts to restore the same as close as possible to the same good, fine and workmanlike condition as the same was before being disturbed and shall thereafter, from time to time as required by the City Director of Public Works or his designee, fill and finish the same up to a period of three years if necessary on account of settling of the earth or pavement caused by such opening, in each case at the sole expense of grantee. In addition to the foregoing, grantee shall work with the City Director of Public Works or his designee on specific guidelines for performance of work, to include restrictions on the use of steel plates, addressing temporary patches and cuts, notification of inspectors, work hours, and use and control of subcontractors. Grantee agrees to reasonably abide by such restrictions. SECTION 5. Grantee shall provide the Director of Public Works and other a limited number of key identified City personnel access to an on-line secured portal showing maps with the Iocation of all facilities within the corporate limits of the City. The security levels and protocols for access shall be designed to reflect that the maps will contain critical energy infrastructure information (CEII) as defined by applicable federal and/or state regulations. Key personnel given access to the information, secutiry levels and protocols shall be reviewed annually beginning six (6) months after the effective date of this Ordinance and continuing throughout the term thereof. SECTION 6. The grantee shall indemnify, keep and hold the City free and harmless from liability on account of injury or damage to person or property growing out of any act of omission by grantee during the term of this franchise. In the event that suit shall be brought against the City, either independently or jointly with grantee on account thereof, grantee, upon written notice to it by the City, will defend the City in any such suit at the cost of grantee. In the event of a final judgment being obtained against the City, either independently or jointly with grantee, the grantee will pay such judgment, with all costs, and hold the City harmless therefrom. Nothing herein contained shall be construed to render grantee liable for the negligence of the City, its agents or employees or of any other person or corporation. In furtherance whereof, grantee shall execute, or continue in place if already existing, an indemnity bond or equivalent in the amount of One Hundred Thousand Dollars ($100,000.00), with good and sufficient surety, in favor of the City of Fairfax, to secure the obligations imposed by this section, and to secure the obligations imposed by this section, and to secure grantee's proper location, erection, operation and maintenance of its facilities, and further to secure grantee's compliance with the terms, provisions and conditions of this Ordinance in all respects. In addition to the above indemnification and bond, the franchise and grant of the rights and privileges herein conferred shall be conditioned upon the grantee obtaining and maintaining in effect throughout the term of this franchise such policy(ies) of liability insurance, which name the City as an additional insured, with such limits and in such form as the City may reasonably require. Satisfactory evidence of such policy(ies) being in full effect shall be filed with the City from time to time, but at least annually, and grantee shall notify the City promptly upon the termination of any such policy(ies). SECTION 7. The grantee and its agents shall take all prudent action to avoid damage or injury to pipes, cables, fixtures and installations of other utility services, particularly those installations whose disruption can cause hazards or danger to persons or property. In the event such damage or injury occurs, the grantee shall notify the City Manager or his designee and shall cooperate and contribute its capabilities to the extent necessary to remove any hazards and repair any damage. SECTION 8. The rights and privileges herein set forth are granted and conferred upon grantee upon the express condition that grantee will render at all times during the term of this franchise adequate gas service at reasonable rates, and that it will maintain its facilities located within the City in good order throughout the term of this franchise. Grantee by accepting the franchise granted by this Ordinance expressly agrees that the State Corporation Commission shall have jurisdiction, to the full extent and in the manner now or hereafter provided by law, to require grantee to render adequate gas service at reasonable rates, to maintain its facilities in good order throughout the term of this franchise, and otherwise to enforce the provisions of this section to the full extent provided by law. In addition, no gas other than natural gas or a compatible substitute shall be used at any time in grantee's facilities within the City unless, and until, authorized by the City by separate ordinance after examination of the same in its sole and absolute discretion. SECTION 9. Any person who shall intentionally destroy or damage any of the facilities of grantee, constructed and maintained in accordance with provisions of this Ordinance within the corporate limits of the City, shall be diligently prosecuted pursuant to applicable law. Also, any person who shall tamper with any metering device incident to grantee's facilities or otherwise intentionally prevent such metering device from properly registering, or otherwise illegally divert gas so that it does not pass through the metering device shall be diligently prosecuted pursuant to applicable law. SECTION 10. All the rights and privileges hereby granted to the grantee may be exercised by any successor or successors, assignee or assignees of the grantee, but said successor or successors, assignee or assignees shall be subject to all the provisions, obligations, stipulations and penalties here prescribed. SECTION 11. The rights and privileges hereby granted shall continue for the period of twenty (20) years from and after the final passage of this Ordinance, unless the same be sooner voluntarily surrendered by grantee, with the consent of the City Council, or unless the same be sooner forfeited as provided by law. Upon the expiration of the term of this franchise or upon its earlier termination by surrender, forfeiture or otherwise, all facilities of grantee in the City shall remain the property of the grantee and may be removed from the streets, alleys and public places of the City at the expense of the grantee within a reasonable time after expiration or termination. The grantee shall be liable for any damage to City property resulting from said removal. SECTION 12. This Ordinance and the rights and privileges hereby granted and conferred shall not become effective unless and until grantee shall comply with all bonding and insurance requirements contained herein. SECTION 13. The rights and privileges granted herein to use the public property are expressly subject to the conditions, limitations and provisions contained in the general ordinances of the City now in force, or that maybe hereafter passed by the City, relative to the use of the streets, alleys and public places of City, so far as they may be applicable to the rights and privileges herein granted, provided such ordinances that may be passed will not place unreasonable or impractical burden upon the grantee. SECTION 14. In addition to satisfying the foregoing terms, the grantee hereby voluntarily bids the annual sum of Ninety -Seven Thousand Five Hundred Dollars ($97,500.00) in consideration of the right to use the City's public rights -of -way, which amount shall be payable in quarterly installments to the City (the amount due shall be prorated for any partial year under this franchise). Such amount shall increase on an annual basis by one and one-half percent (1 ' 2 %), commencing on July 1 in each succeeding year of this franchise and the quarterly payment due first on such date. In addition, any person or corporation bidding for this franchise must deposit with the bid cash or certified funds in the amount of One Thousand Dollars ($1,000.00), as security to ensure that if an ordinance is enacted, then the grantee shall accept this franchise in the manner herein provided within thirty (30) days following the date of enactment. If the grantee fails to accept in the manner required within such time, then the grantee shall forfeit the amount required to be deposited with the bid. Any payments tendered by other bidders will be returned after the award of this franchise to the grantee. SECTION 15. The sections, paragraphs, sentences, clauses and phrases contained in this Ordinance are severable, and if any phrase, clause, sentence, paragraph or section of this Ordinance shall be declared unconstitutional or otherwise invalid by a valid judgment or decrees of a court of competent jurisdiction, such unconstitutionality or invalidity shall not affect any of the remaining phrases, clauses, sentences, paragraphs or sections of this Ordinance. SECTION 16. This Ordinance shall be effective immediately upon its enactment by the City Council, in accordance with applicable law. This Ordinance shall become effective as provided by law. INTRODUCED: October 15, 2019 PUBLIC HEARING: November 12, 2019 ADOPTED: November 12, 2019 Mayor a/g /y Date VOTE: Councilmember DeMarco Aye Councilmember Lim Aye Councilmember Miller Aye Councilmember Passey Aye Councilmember Stehle Absent Councilmember Yi Aye