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.
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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.