04-23-2003 Council Agenda - Laserfiche WebLink

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Thomas M. Sweeney George F. Borer Patrick J. Sweeney Robin D. Tourney Joseph J. Murphy ATTACHMENT C Sweeney, Borer & Sweeney Professional Association Attorneys at Law 3250 Rice Street St. Paul, MN 55126 April 9, 2003 VIA FACSIMILE AND U.S. MAIL Mr. Joel R. Hanson City Administrator 515 Little Canada Road Little Canada, MN 55117 -1600 Re: Electric and Gas Franchise Agreements (Xcel Energy) Our File No. 10281 Dear Joel: Telephone (651) 222-2541 Facsimile (651) 223-5289 I have reviewed Little Canada Ord. Nos. 303 (electric) and 304 (gas), whereby the City of Little Canada, as franchisor, giants two twenty -year franchises to Northern States Power Company, as franchisee, commencing June 22, 1988. As we have discussed, Minn. Stat. § 216B.36 authorizes a municipality to enter into a franchise agreement with a public utility. The Statute provides that pursuant to the terns of the franchise, "the utility may be obligated by any municipality to pay to the municipality fees to raise revenue or defray increased municipal costs accruing as a result of utility operations, or both. The fee may include but is not limited to a sum of money based upon gross operating revenues or gross earnings from its operations in the municipality, so long as the public utility shall continue to operate in the municipality, ..." Since the provisions of Ord. Nos. 303 and 304 do not explicitly provide for the collection of a fee from the public utility, it is our opinion that the City of Little Canada could amend these ordinances by the adoption of ordinances providing for the collection of a franchise fee. The authority to adopt such ordinances exists without the requirement of re- negotiation of the franchise agreement. However, both Ordinance No. 303 and 304 provide that the Company must file a written acceptance of the provisions of the franchise agreement within 90 days after adoption of the ordinance. Our past experience with franchise agreements and public utility 7