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HomeMy WebLinkAbout2000-014 Council OrdinancesCouncil Member Reinert introduced the following ordinance and moved its adoption: CITY OF LINO LAKES ORDINANCE 14-00 AN ORDINANCE GRANTING TO RELIANT ENERGY MINNEGASCO, A NATURAL GAS UTILITY, A DIVISION OF RELIANT RESOURCES CORPORATION, A DELAWARE CORPORATION, ITS SUCCESSORS AND ASSIGNS, A NONEXCLUSIVE FRANCHISE TO CONSTRUCT, OPERATE, REPAIR AND MAINTAIN FACILITIES AND EQUIPMENT FOR THE TRANSPORTATION, DISTRIBUTION, MANUFACTURE AND SALE OF GAS ENERGY FOR PUBLIC AND PRIVATE USE AND TO USE PUBLIC WAYS AND PUBLIC GROUNDS OF THE CITY FOR SUCH PURPOSES; AND PRESCRIBING CERTAIN TERMS AND CONDITIONS THEREOF. The City Council of the City of Lino Lakes ordains: SECTION 1. DEFINITIONS. For purposes of this Ordinance, the following capitalized terms shall have the following meanings: 1.1 City. The City of Lino Lakes, County of Anoka, State of Minnesota. 1.2 City Utility System. Facilities used for providing non -energy related public utility service owned or operated by the City or agency thereof, including sewer and water service, street lighting and traffic signals, but excluding facilities for providing heating, lighting, or other forms of energy. 1.3 Commission. The Minnesota Public Utilities Commission, or any successor agency or agencies, including an agency of the federal government that preempts all or part of the authority to regulate gas retail rates now vested in the Commission. 1.4 Company. Reliant Energy Minnegasco, a Division of Reliant Energy Resources Corporation, a Delaware corporation, its successors and assigns, including successors to assignees of those portions of the Company that constitute any part or parts of the Gas Facilities subject to this franchise. 1.5 Effective Date. The date on which the ordinance becomes effective under Section 22. 1.6 Gas. Natural gas, manufactured gas, mixture of natural gas and manufactured gas or other forms of gas energy. 1.7 Gas Facilities. Gas transmission and distribution pipes, mains, lines, ducts, fixtures, and all necessary facilities, equipment and appurtenances owned, operated or otherwise used by the Company for the purpose of providing gas energy for public or private use. 1.8 Non -Betterment Costs. Costs incurred by the Company from relocation, removal or rearrangement of Gas Facilities that do not result in an improvement to the Facilities. 1.9 Notice. A writing served by a party or parties on another party or parties. Notice to Company must be mailed to: Reliant Energy Minnegasco Government & Public Relations 800 LaSalle Avenue Minneapolis, MN 55402 Notice to City must be mailed to: City Clerk City of Lino Lakes 600 Town Center Parkway Lino Lakes, MN 55014-1182 1.10 Public Way. Any street, alley or other public right-of-way within the City. 1.11 Public Ground. Land owned or otherwise controlled by the City for parks, open space or similar public purpose. SECTION 2. FRANCHISE. 2.1 Grant of Franchise. The City grants the Company, for a period of until March 31, 2012 from the Effective Date, the right to import, manufacture, transport, distribute and sell Gas for public and private use within and through the limits of the City. This right includes the provision of Gas that is (i) manufactured by the Company or its affiliates and delivered by the Company, (ii) purchased and delivered by the Company or (iii) purchased from another source by the retail customer and delivered by the Company. For these purposes, the Company may construct, operate, repair and maintain Gas Facilities in, on, over, under and across the public Way and Public Ground subject to the provisions of this ordinance. The Company may do all things reasonably necessary or customary to accomplish these purposes, subject to other applicable ordinances, permit requirements and to further provisions of this ordinance. 2.2 Effective Date. This franchise shall be in force and effect from and after its passage of this ordinance and publication as required by law and its acceptance by Company. If Company does not file a written acceptance with the City within 60 days after the date the City Council adopts this ordinance, or otherwise informs the City, at any time, that the Company does not accept this franchise, the City Council by resolution may revoke this franchise or seek its enforcement in a court of competent jurisdiction. 2.3 Non Exclusive Franchise. This ordinance does not grant an exclusive franchise. 2.4 Publication Expense. The expense of publication of this ordinance must be paid by the Company. 2.5 Default: Dispute Resolution. If the City or Company asserts that the other party is in default in the performance of any obligation hereunder, the complaining party must notify the other party in writing of the default and the desired remedy. Representatives of the parties must promptly meet and attempt in good faith to negotiate a resolution of the dispute. If the dispute is not resolved within thirty (30) days after service of the notice, the parties may jointly select a mediator to facilitate further discussion. The parties will equally share the fees and expenses of the mediator. If a mediator is not used or if the parties are unable to resolve the dispute within thirty (30) days after first meeting with the mediator, either party may commence an action in District Court to interpret and enforce this franchise or for such other relief as may be permitted by law or equity. SECTION 3. CONDITIONS OF USE. 3.1 Location of Facilities. Gas facilities shall be located, constructed, and maintained so as not to interfere with the safety and convenience of ordinary travel along and over Public Ways and so as not to disrupt normal operation of any City Utility System. Gas Facilities shall be located on Public Grounds as determined by the City. Company's construction, reconstruction, operation, repair, maintenance, location and relocation of Gas Facilities shall be subject to other reasonable regulations of the City consistent with authority granted the City to manage its Public Ways and Public Grounds under state law, to the extent not inconsistent with a specific term of this franchise. 3.2 Mapping Information. The Company must promptly provide complete and accurate mapping information for any of its Gas Facilities in accordance with Minnesota Rules Parts 7819.4000 and 7819.4100. 3.3 Permit Required. The Company may not open or disturb the surface of any Public Way or Public Ground without first having obtained a permit from the City, for which the City may impose a reasonable fee. The permit conditions imposed on the Company may not be more burdensome than those imposed on other utilities for similar facilities or work. The Company may, however, open and disturb the surface of any Public Way or Public Ground without a permit if (i) where an emergency exists requiring the immediate repair of Gas Facilities and (ii) the Company gives notice of the city before, if possible, commencement of the emergency repair. On the next business days after commencing the repair, the Company must apply for any required permits and pay the required fees. 3.4 Restoration. After undertaking any work requiring the opening of any Public Way, the Company shall restore the Public Way in Accordance with Minnesota Rules part 7819.1100 and applicable City ordinances consistent with law. Company shall restore the Public Ground to as good a condition as formerly existed, and shall maintain the surface in good condition for six months thereafter. All work shall be completed as promptly as weather permits, and if Company shall not promptly perform and complete the work, remove all dirt, rubbish, equipment and material, and put the Public Ground in the said condition, the City shall have, after demand to Company to cure and the passage of a reasonable period of time following the demand, but not to exceed five days, the right to make the restoration of Public Ground at the expense of Company. Company shall pay to the City the cost of such work done for or performed by the City. This remedy shall be in addition to any other remedy available to the City for noncompliance with this section 3.4. 3.5 Company Protection of Gas Facilities in Public Ways. The Company must take reasonable measures to prevent the Gas Facilities from causing damage to persons or property. The Company must take reasonable measures to protect the Gas Facilities from damage that could be inflicted on the Facilitates by persons, property or the elements. The Company must take protective measures when the City performs work near the Gas Facilities, if given reasonable notice by the City of such work prior to its commencement. 3.6 Notice of Improvements. The City must give the Company reasonable notice of plans for improvements to Public Ways or Public Ground where the City has reason to believe that Gas Facilities may affect or be affected by the improvement. The notice must contain; (i) the nature and character of the improvement, (ii) the Public Ways or Public Grounds upon which the improvements are to be made, (iii) the extent of the improvements, (iv) the time when the City will start the work, and, (v) if more than one Public Way or Public Ground is involved, the order in which the work is to proceed. The notice must be given to the Company a sufficient length of time in advance of the actual commencement of the work to permit the Company to make any necessary additions, alterations, or repairs to its Gas Facilities. If streets are at final width and grade and the City has installed underground sewer and water mains and service connections to the property line abutting the streets prior to a permanent paving or resurfacing of such streets, and the Company's main is located under such street, the City may require the Company to install gas service connections prior to such paving or resurfacing, if it is apparent that gas service will be required during the five years following the paving or resurfacing. SECTION 4. RELOCATIONS. 4.1 Relocation of Gas Facilities in Public Ways. The Company shall comply with Minnesota Rules, part 7819.3100 and applicable City relocation ordinances consistent with law. 4.2 Relocation of Gas Facilities in Public Ground. The City may require the Company to relocate the Gas Facilities within or remove the Gas Facilities from Public Ground, upon a finding by City that the Gas Facilities have become or will become a substantial impairment of the public use or enjoyment to which the Public Ground is or will be put. The relocation or removal will be at the Company's expense. The provisions of this Section 4.2 apply only to Gas Facilities constructed in reliance on this franchise and the Company does not waive its rights under an easement or prescriptive right in the Public Ground. 4.3 Vacation of Public Ways. The City shall give Company at least two weeks prior written notice of a proposed vacation of a Public Way. The City and the Company shall comply with Minnesota Rules, 7819.3200 and applicable ordinances consistent with law. 4.4 Projects with Federal Funding. Relocation, removal or rearrangement of any Gas Facilities made necessary because of the extension into or through the City of a federally -aided highway project shall be governed by the provisions of Minnesota Statutes, Section 161.46. b SECTION 5. DEFENSE AND INDEMNIFICATION. 5.1 Indemnity of City. Company shall defend, indemnify and hold the City harmless from any and all liability, on account of injury to persons or damage to property occasioned by the construction, maintenance, repair, inspection, the issuance of permits, or the operation of the Gas Facilities located in the Public Ways and Public Grounds. The City shall not be indemnified for losses or claims occasioned through its own negligence except for losses or claims arising out of or alleging the City' s negligence as to the issuance of permits for, or inspection of, Company' s plans or work. 5.2 Defense of City. In the event a suit is brought against the City under circumstances where this agreement to indemnify applies, Company at its sole cost and expense shall defend the City in such suit if written notice thereof is promptly given to Company within a period wherein Company is not prejudiced by lack of such notice. If Company is required to indemnify and defend, it will thereafter have control of such litigation, but Company may not settle such litigation without the consent of the City, which consent shall not be unreasonably withheld. This section is not, as to third parties, a waiver of any defense or immunity otherwise available to the city. The Company, in defending any action on behalf of the City, shall be entitled to assert in any action ever or immunity that the City could assert in its own behalf. This franchise agreement shall not be interpreted to constitute a waiver by the City of any of its defenses of immunity or limitations on liability under Minnesota Statutes, Chapter 466. SECTION 6. SUCCESSORS IN INTEREST. This ordinance and the rights and obligations conferred hereby, is binding on and inures to the benefit of the City and its successors and on the Company and its successors and permitted assigns. This ordinance and the franchise it confers may not be assigned by the Company without the written consent of the City. SECTION 7. FRANCHISE FEE. 7.1 Form. During the term of franchise hereby granted, and in addition to permit fees being imposed or that the City has a right to impose, the City may charge the Company a franchise fee. The fee may be (i) a percentage of gross revenues received by the company for its operations with the City, or (ii) a flat fee per customer based on metered service to retail customers within the City or on some other similar basis, or (iii) a fee based on units of energy delivered to any class of retail customers within the corporate limits of the City. The method of imposing the franchise fee, the percentage of revenue rate, or the flat rate based on metered service may differ for each customer class or combine the methods described in (i) — (iii) above in assessing the fee. The City shall seek to use a formula that provides a stable and predictable amount of fees, without placing the Company at a competitive disadvantage. If the company claims that the City required fee formula is discriminatory or otherwise places the Company at a competitive disadvantage, the Company shall provide a formula that will produce a substantially similar fee amount to the City and reimburse the City's reasonable fees and costs in reviewing the implementing the formula. The City will attempt to accommodate the Company but is under no franchise obligation to adopt the Company -proposed franchise fee formula and such review will not delay the implementation of the City -imposed fee. 7.2 Separate Ordinance. The franchise fee shall be imposed by separate ordinance duly adopted by the City Council, which ordinance shall not be adopted until at least sixty days after written notice enclosing such proposed ordinance has been served upon the Company. The fee shall become effective sixty days after such adopted ordinance is published. 7.3 Condition of Fee. The separate ordinance imposing the fee shall not be effective against the Company unless it lawfully imposes a fee of the same or substantially similar amount on the sale of energy within the City by any other energy supplier, provided that, as to such supplier the City has the authority or contractual right to require a franchise fee or similar fee through a previously agreed upon franchise. 7.4 Collection of Fee. The franchise fee shall be payable not less than quarterly during complete billing months of the period for which payment is to be made. The franchise fee formula may be changed from time to time, however, the change shall meet the same notice requirements and the fee may not be changed more often than annually. Such fee shall not exceed any amount which the Company may legally charge to its customers prior to payment to the City. Such fee is subject to subsequent reductions to account for uncollectibles and customer refunds incurred by the Company. The Company agrees to make available for inspection by the City at reasonable times all records necessary to audit the Company's determination of the franchise fee payments. 7.5 Continuation of Franchise Fee. If this franchise expires and City and the Company are unable to agree upon terms of a new franchise, the franchise fee, if any, being imposed by the City at the time this franchise expires, will remain in effect until a new franchise is agreed upon. SECTION 8. LIMITATION ON APPLICABILITY. This Ordinance constitutes a franchise agreement between the City and the Company. No provision of this franchise inures to the benefit of any third person, including the public at large, so as to constitute any such person as a third -party beneficiary of the agreement or of any one or more of the terms hereof, or otherwise give rise to any cause of action for any person not a party hereto. SECTION 9. PREVIOUS FRANCHISE SUPERSEDED. This franchise supersedes and replaces previous franchises granted to the Company or its predecessors. SECTION 10. AMENDMENTS. This ordinance may be amended at any time by the City. An amendatory ordinance becomes effective upon the filing of the Company's written consent thereto. SECTION 11. SEVERABILITY. If any portion of this franchise is found unenforceable for any reason, the validity of the remaining provisions will not be affected. This Ordinance shall be effective upon passage and official publication. Passed by the Lino Lakes City Council on this 23th day of October, 2000. 9J n J. B` rgeson, Mayor Ry-Chelaustad CMC City Clerk The motion for adoption of the foregoing ordinance was duly seconded by Council Member Carlson and upon vote being taken thereon, the following voted in favor thereof: Carlson, Dahl, O'Donnell, Reinert The following voted against same: none, Bergeson was absent Whereupon said ordinance was declared duly passed and adopted.