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HomeMy WebLinkAboutOrdinances - ORD-09-1483 - 09/14/2009 - AUTHORIZE FRANCHISE AGREEMENT WITH NICORORDINANCE NO. ORD-09-1483 An Ordinance Authorizing Northern Illinois Gas Company (d/b/a Nicor Gas Company), Its Successors and Assigns, to Construct, Operate and Maintain a Gas Distributing System In and Through the City of McHenry, Illinois BE IT ORDAINED by the MAYOR and CITY COUNCIL of the CITY OF McHENRY, McHenry County., Illinois, as follows: SECTION 1: That the right, permission and authority be and the same are hereby granted to NORTHERN ILLINOIS GAS COMPANY (d/b/a NICOR GAS COMPANY, an Illinois corporation, its successors and assigns (hereinafter referred to as the "Grantee"), to construct, operate and maintain in and through the CITY OF McHENRY (hereinafter referred to as the "Municipality"), in the State of Illinois, for a term of thirty-five (35) years, a system for the production, distribution and sale of gas for fuel, heating, power, processing and other purposes within and outside the corporate limits of the Municipality, and to construct, lay, maintain and operate such gas pipes, mains, conductors and other devices, apparatus and equipment as may be necessary or convenient for such system in, under, along and across each and all of the streets, alleys, avenues and other public places in the Municipality, subject to the conditions and regulations hereinafter set forth. SECTION 2: All pipes, mains, conductors and other appliances, including connections with service pipes, hereafter laid in streets, alleys, avenues or other public places, shall be laid under the supervision of the Municipality or such other duly authorized agent of the Municipality as the City Council may from time to time designate. All pipes, mains, conductors and other appliances shall be so located as not to injure unnecessarily any drains, sewers, catch basins, water pipes, pavements or other like public improvements, but should any drain, sewer, catch basin, water pipe, pavement or other like public improvement be injured by such location, the Grantee shall forthwith repair the damage caused by such injury to the satisfaction of the Municipality, or such other duly authorized agent, and in default thereof the Municipality may repair such damage and charge the cost thereof to, and collect the same from, the Grantee. The Grantee shall be subject to all reasonable regulations which may now or hereafter be prescribed by general ordinance of the Municipality with respect to the use of the public streets, alleys, avenues and other public places of the Municipality. SECTION 3: The Grantee shall indemnify, become responsible for and forever save harmless the Municipality from any and all judgments, damages, decrees, costs and expenses, including Page 1 attorneys' fees, which the Municipality may legally suffer or incur, or which may be legally obtained against the Municipality, for or by reason of the use and occupation of any street, alley, avenue or other public place in the Municipality by the Grantee pursuant to the terms of this Ordinance or legally resulting from the exercise by the Grantee of any of the privileges herein granted except that the indemnity provided for in this Section 3 shall not apply to any liability, judgments, damages, decrees, costs and expenses determined by a court of competent jurisdiction to have resulted from the negligence or intentional acts or omissions of Municipality, its agents and employees. SECTION 4: After the passage of this Ordinance, and within thirty (30) days after passage, this Ordinance, if accepted, shall be accepted by the Grantee by its filing with the City Clerk of the Municipality an unconditional written acceptance hereof, to be duly executed according to law, and a failure of the Grantee to so accept this Ordinance within said period of time shall be deemed a rejection hereof by the Grantee, and the rights and privileges herein granted shall after the expiration of said period of thirty (30) days, if not so accepted, absolutely cease and determine, unless said period of time shall be extended by the Municipality by ordinance duly passed for that purpose and before the expiration of said period of thirty (30) days. SECTION 5: All provisions of this Ordinance which are obligatory upon, or which inure to the benefit of, said. Grantee shall also be obligatory upon and shall inure to the benefit of any and all successors and assigns of the Grantee. SECTION 6: Grantee shall provide an amount of natural gas during each billing year, without charge to the Municipality, in accordance with its policy existing from time to time and applicable to other municipalities, as expressed in and pursuant to the terms of a "Gas Letter," in the form of Exhibit A, attached hereto and incorporated herein, and as may from time to time hereafter be modified by Grantee. Provided however, notwithstanding anything to the contrary in any Gas Letter, that in the event the Grantee's policy set forth herein and in Exhibit A in regard to the practice of supplying gas without charge to municipalities in Grantee's present service area is changed at any time during the term hereof, or in the event that Grantee in the future: provides any other gas utility service benefit or other consideration as a matter of general policy, to all municipalities in such service area, it will notify the Municipality of any such change and, upon acceptance by the Municipality, will grant the Municipality the benefits of such change or benefits under the same conditions applicable to such other municipalities. Notwithstanding, the first sentence of this Section, Municipality and Grantee agree that no gas without charge or other payment or benefit is payable, due or owing for any period prior to September 19, 2010. Page 2 SECTION 7: This Ordinance, if accepted by the Grantee as hereinabove provided, shall be in full force and effect as of September 19, 2010, and from and after the effective date shall supersede, cancel, repeal and be in lieu of any and all other existing or prior grants of right, permission and authority by said ]Municipality to said Grantee or any predecessor companies or assignors of the Grantee to construct, operate and maintain any system for the producti on, distribution and sale of gas for fuel, heating, power, processing and any other purposes within the corporate limits of this Municipality, and this Ordinance shall likewise cancel all of the obligations under said existing or prior grants. SECTION 8: If any section, paragraph, subdivision, clause, sentence or provision of this Ordinance shall be adjudged by any Court of competent jurisdiction to be invalid, such judgment shall not affect, impair, invalidate or nullify the remainder thereof, which remainder shall remain and continue in full force and effect. SECTION 9: All ordinances or parts of ordinances in conflict herewith are hereby repealed to the extent of such conflict. Voting Aye: SANTI, GLAB, SCHAEFER, MURGATROYD, WIMMER, PETERSON, CONDON Voting Nay: NONE Absent: NONE Abstain: NONE APPROVED: 7�6ayor Susan E. Low (SEAL) ATTEST: City IER rk J ce . Jones Passed: S 14 2 9 Approved: SEPTEMBER 14, 2009 Z. UWcHenryCiryofDrdinancesIGasOrdinance.Nicor.ord.CLEAN. doc Page 3 EXHIBIT "A" "Form of Gas Letter" City of McHenry, Illinois: The undersigned, Northern Illinois Gas Company (d/b/a Nicor Gas Company) (the "Company"), for and in consideration of the adoption by the authorities of the City of McHenry, Illinois (the "Municipality"), of an ordinance granting it the right to construct., operate and maintain a gas distribution system in the Municipality for a term of 35 years from September 19, 2010, hereby agrees for itself, its successors and assigns, that so long as said ordinance shall remain in full force and effect, it will during each billing year (start and finish of each year shall begin and end with regular meter reading date nearest to January 1) throughout the: remainder of the life of said ordinance, supply without charge to the Municipality, an amount of gas not to exceed [OPEN: TO BE COMPLETED BY NICOR] therms, to be used in buildings which may be occupied from time to time by the Municipality solely for municipal purposes, or such part thereof as may from time to time be so occupied, and not for purposes of revenue. The amount of said gas being so supplied without charge is based upon a population of [OPEN: TO BE COMPLETED BY NICOR] in the Municipality. The amount of free gas to be supplied will be adjusted by the Company based on each decennial census count. Between decennial census counts, the amount of gas supplied may be increased on the basis of changes in population of the Municipality as shown by revised or special census. Upon the submussion of a written request by the Municipality accompanied by the official State notification of census change, the amount of natural gas to be supplied without charge will be adjusted by the Company. Changes in the amount of gas supplied shall be made on the basis of 3 therms per person up to 10,000 of population; 2 therms per person for the next 10,000 of population; 1 therm per person for the next 80,000 of population; 1.2 therms per person for the next 20,000 of population; and 1.5 therms per person for the population over 120,000. None of said gas to be supplied without charge to the Municipality, shall be resold for any purpose whatsoever, and in the event the Municipality uses less than the above -mentioned number of therms of gas in any billing year, there shall be no payment due to the Municipality from the Company, or its Page 4 successors and assigns, for gas not used during that billing year, nor shall any such unused therms be carried over for the following year's use. In the event the Company's policy in regard to the practice of supplying gas without charge to municipalities in its present service area is changed at any time in the future, or in the event that the Company in the future provides any other gas utility service benefit as a matter of general policy to all municipalities in such service area, it will inform the Municipality of any such change and, upon acceptance by the Municipality, will grant the Municipality the benefits of such change or benefits under the same conditions applicable to other municipalities. The Company, for itself, its successors and assigns, reserves the option, however, to reduce the total amount of gas supplied during any one billing year without charge asaforesaid by the amount of any fees which the Municipality may charge the Company for street or parkway openings or inspections of any kind. Such reduction will be arrived at by the use of the Company's applicable rate for such calculation. This agreement shall supersede, replace and be in lieu of the provisions as to the supply of gas without charge to the Municipality contained in a. letter of the Company addressed to the Mayor and City Council dated [OPEN: TO BE COMPLETED BY NICOR]. END OF EXHIBIT Page 5 CERTIFICATION I, JANICE C. JONES, do hereby certify that I am the duly appointed, acting and qualified Clerk of the City of McHenry, McHenry County, Illinois, and that assuch Clerk, I am the keeper of the records and minutes and proceedings of the Mayor and Aldermen of said City of McHenry. I do hereby further certify that at a regular meeting of the Mayor and Aldermen of the City of McHenry, held on the 14TH day of SEPTEMBER , 2009, the foregoing Ordinance entitled An Ordinance Authorizing Northern 111inois Gas Company (d/b/a Nicor Gas Company), Its Successors and Assigns, to Construct, Operate and Maintain a Gas Distributing System In and Through the City of McHenry, Illinois, was duly passed by the City Council of the City of McHenry. The pamphlet form of Ordinance No. ORD-09-1483 , including the Ordinance and a cover sheet thereof was prepared and a copy of such Ordinance was posted in the City Hall, commencing on the 21Sfi day of �EPTEMBER' 2009, and continuing for at least 10 days thereafter. Copies of such Ordinance were also available for public inspection upon request in the office of the City Clerk. I do further certify that the original, of which the attached is a true and correct copy, is entrusted to me as, the Clerk of said City for safekeeping, and that I am the lawful custodian and keeper of the same. GIVEN under my hand and seal this 21ST day of SEPTE:MBE=R 2009. 4--, 1J ce . Jones, 1 k C y of cHe Mc County, inois (SEAL) ACCEPTANCE OF GAS ORDINANCE; TO THE MAYOR AND CITY COUNCIL OF THE CITY OF McHENRY, ILLINOIS: The undersigned, NORTHERN ILLINOIS GAS COMPANY (d/b/a NICOR GAS COMPANY), for itself, its successors and assigns, hereby accepts the Ordinance entitled: `"An Ordinance Authorizing Northern Illinois Gas Company (d/b/a Nicor Gas Company), Its Successors and Assigns, to Construct, Operate and Maintain a Gas Distributing System In and Through the City of McHenry, Illinois"; duly passed by the City Council of the City of McHenry, on the 14th day of September, 2009, and duly approved by the Mayor of said City on the 14th day of September, 2009. IN TESTIMONY WHEREOF, the undersigned has caused these presents to be signed by its Vice President, and attested by its Assistant Secretary, this 30th day of September, 2009. Northern Illinois Gas Company (d/b/a Nicor Gas Company) D. Scott Lewis Vice President ATTEST: By I -A 1-\ -,-- Neil J. MalonI Assistant Seer y y STATE OF ILLINOIS COUNTY OF McHENRY 1 SS. CITY OF McHENRY t c� I, _ N , Cit Clerl�the City of McHenry, Illinois, do hereby certify that I have received the attached acceptance of Ordinance Number ORD-09-1483 which ordinance was duly passed by the City Council of said City on the 14th clay of September, 2009, and duly approved by the Mayor of said City on the 14th day of September, 2009, and that said acceptance was duly filed in my office on the day of _� ��,� 1� , 2009. I do further certify that I am the legal custodian of all papers, contracts, documents and records of said City. WITNESS my hand and the official seal of said City this —? day of 2009. (SEAL) CitClerk MycHenry, Illinois