HomeMy WebLinkAbout#14 Holiday Lights XcelMAYOR AND COUNCIL COMMUNICATION
DATE: October 4, 2016
CONSENT
ITEM #: 14
MOTION
AGENDA ITEM: Xcel Holiday Lighting Agreement
SUBMITTED BY: Rob Weldon, Public Works Director
REVIEWED BY: Kristina Handt, Administrator
BACKGROUND:
With the recent street reconstruction and municipal utility improvements that have taken place this past
year on Lake Elmo Ave., there have also been improvements made to the overhead utilities that run
through that area. Noticeable improvements to the overhead utilities include new wooden transmission
poles and cleaner line runs. As a result of the installation of new transmission poles the city is no longer
able to hang seasonal decorations and/or flags from the poles as was done in the past, without a signed
agreement with Xcel Energy. Public Works was able to remove hardware from the poles that were
removed but is prohibited to attach said hardware to the new poles. There is also no electrical hook-up on
the new poles to allow the city to illuminate holiday decorations.
ISSUE BEFORE COUNCIL:
Council is requested to approve and sign a Holiday Lighting Agreement with Xcel Energy to continue to
hang seasonal decorations on poles owned by Xcel Energy for power transmission.
PROPOSAL DETAILS/ANALYSIS:
Upon execution of the signed agreement with Xcel, power service will be reinstalled to 12 new poles
along Lake Elmo Ave that have traditionally been used for holiday lighting. The agreement will not only
allow the city use of the poles for holiday lighting but will also allow installation of hardware needed to
fly flags along the street.
FISCAL IMPACT:
There is to be no charge for the reinstallation of 12 electrical services. There will be an adjusted charge
based on an estimated number of days the holiday lights are used and the amount of energy consumed by
each.
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It should be noted that in order to be more environmentally responsible the Public Works Department has
installed LED light bulbs in the holiday decorations. Additionally, this was noted when communications
with Xcel initially took place and is outlined on the 2016 Holiday Lighting form to be submitted
OPTIONS:
Approve Holiday Lighting Agreement with Xcel Energy
Deny Holiday Lighting Agreement with Xcel Energy
Table Holiday Lighting Agreement with Xcel Energy
RECOMMENDATION:
Staff recommends approval of the Holiday Lighting Agreement with Xcel Energy for Holiday Lighting
and Flag Display on Lake Elmo Ave. If removed from the consent agenda:
Motion to approve the Holiday Lighting Agreements with Xcel Energy for Holiday Lighting and
Flag Display on Lake Elmo Ave.
Electric Service Agreement
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ELECTRIC SERVICE AGREEMENT
This Agreement is entered into this ___ day of __________, 20__, by and
between Northern States Power Company, d/b/a Xcel Energy, a Minnesota Corporation,
hereinafter called “Xcel Energy” and ________________________, a Minnesota
municipal corporation, hereinafter called the “Licensee”.
RECITALS
1. Licensee and Xcel Energy have entered into a Seasonal Pole Use License
Agreement pursuant to which Licensee will attach seasonally decorative
lighting and associated equipment to Xcel Energy owned poles. This Electric
Service Agreement covers only seasonally decorative lighting (“Lights”).
2. To accommodate Licensee’s need for electric service for Lights and Xcel
Energy’s need to bill for such service, and in consideration of the covenants
and premises set forth below, the parties agree to the terms set forth below.
AGREEMENT
1. Kind of Service. Xcel Energy agrees to supply and Licensee agrees to accept
electric service in the form of 1 Phase, 2 Wire, alternating current at a nominal
frequency of 60 Hertz and at a nominal voltage of 120 VAC for Licensee’s
use solely for the operation of Lights to be installed by Licensee at various
locations within the geographical limits of the Licensee.
2. Capacity Commitment. Xcel Energy agrees to provide and keep available
throughout the term of the Agreement for Licensee’s use at its equipment
locations sufficient capacity necessary to provide Licensee with electric
service for Lights.
3. Term. This Agreement shall commence on _______, 20__ at 12:01 a.m.
and shall continue until ___________, 20__ and, if not then terminated by at
least thirty days prior written notice by either party, shall continue further
until so terminated.
4. Rate. Licensee agrees to qualify for and elects the rate schedule now in
effect being the one attached hereto (Rate Code: A18 (nonmetered)) as
Exhibit 1.
Electric Service Agreement
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5. Energy Usage for Billing Purposes.
a. Licensee agrees to supply Xcel Energy estimated energy usage for Lights
on an annual basis on or before November 1 of each year.
b. Xcel Energy reserves the right to require periodic test metering of Lights
to determine actual consumption and to adjust energy usage for billing
purposes accordingly based on test results.
6. Group Bill. Xcel Energy will provide group billing of Licensee’s Lights
on one invoice.
7. Payment of Bills. All bills are payable at Xcel Energy’s office on or before
the date the bill is due for service supplied by Xcel Energy in the preceding
billing period.
8. Terms and Conditions. The service hereunder shall be supplied for
Licensee’s use subject to the General Rules and Regulations of Xcel Energy
on file with the state Regulatory Commission as they now exist or may
hereafter be changed. A copy of such rules and regulations is available from
Xcel Energy. Customer agrees to use electrical service only as herein stated
and will not assign this Agreement except upon written consent of Xcel
Energy.
Electric Service Agreement
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Northern States Power Company Licensee
d/b/a Xcel Energy
By: _________________________ By:_________________________
Name: ______________________ Name:______________________
Title:________________________ Title:_______________________
SEASONAL POLE USE LICENSE AGREEMENT
THIS SEASONAL POLE USE LICENSE AGREEMENT ("Agreement") is entered into as
of the _____ day of ___________, 20__ by and between Northern States Power Company d/b/a
Xcel Energy (“Xcel Energy”) and ______________________, a Minnesota municipal corporation
(“Licensee”).
RECITALS
WHEREAS, Xcel Energy owns certain poles ("Poles") for providing electrical services to
Xcel Energy's customers located within the geographical limits of Licensee.
WHEREAS, Licensee wishes to license from Xcel Energy on a non-exclusive basis the use
of certain portions of Xcel Energy's Poles for the sole purpose of attaching temporarily and
seasonally decorative lighting and associated equipment owned and operated by Licensee
(“Equipment”), to certain Poles located within the geographical limits of the Licensee.
WHEREAS, Xcel Energy is willing to permit the location of said Equipment on the Poles
upon the terms and conditions stated in this Agreement.
NOW THEREFORE, in consideration of the mutual covenants contained in this
Agreement and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. USE.
1.1 Use of Poles. Licensee may submit to Xcel Energy Pole Permit Applications
(each, a “PPA”) as provided in Section 1.3 requesting to attach Equipment owned
and operated by Licensee to specific Poles, solely for the purpose of seasonally
decorative lighting. Such use, if approved in writing by Xcel Energy, shall be in
accordance with Xcel Energy’s Specifications For Attachment of Private Holiday
Ornaments to Poles (“Specifications”) made a part hereof as Exhibit A, as may be
amended by Xcel Energy from time to time during the term of this Agreement and
any extensions thereof, and the conditions of this Agreement. The parties agree
that the portion of the Equipment described or depicted in Exhibit A as the
“Decorations” will be attached to the Poles only seasonally, generally during the
period of mid-November through mid-January each year. The balance of the
Equipment, including, but not limited to, the conductor, conduit, weatherhead and
disconnect box, shall remain attached to the Poles throughout the year. The use of
the Equipment for purposes other than seasonally decorative lighting during the
mid-November through mid-January time frame is prohibited.
1.2 Existing Equipment Attachments. Licensee’s existing inventory of Equipment
attachments to Poles at the date of this Agreement, if any, listed by location, is
attached as Exhibit B. Xcel Energy reserves the right to conduct an audit of
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Licensee’s Equipment at any time to verify the attachment count and to confirm
Equipment compliance with the Specifications, and terms and conditions of this
Agreement.
1.3 Pole Permit Application (PPA). Licensee shall prepare and submit an original and
one (1) copy of a PPA on the form marked and attached hereto as Exhibit C, as
modified from time-to-time by Xcel Energy, when applying for permission to make
Equipment attachments to any Pole owned by Xcel Energy. A PPA is intended to
provide Xcel Energy with information necessary for a pre-construction inspection
of the Pole(s) prior to permitting Licensee to attach to that Pole. A PPA shall
include the specifications for the Equipment the Licensee is requesting to attach,
and a map showing the location and nearest addresses of the Poles the Licensee
desires to attach to. Licensee shall reimburse Xcel Energy for all costs and
expenses associated with the pre-construction inspection of the PPA. Licensee shall
not attach any Equipment to any Pole without the prior written approval of Xcel
Energy.
1.4 Installation, Construction, Improvements, Maintenance, and Repairs. Upon written
receipt of an approved PPA, the Licensee may attach the Equipment to the Poles as
described in the PPA. The Equipment, in each and every location shall be erected,
installed, maintained and removed in accordance with the requirements of the
Specifications, the National Electric Safety Code, Current Edition, or any revisions
thereof, and other generally applicable engineering standards and in compliance with
any applicable rules, regulations or orders now in effect or hereafter issued by any
federal or state commission or any other public authority having jurisdiction. After
completing the installation of the Equipment, Licensee shall notify Xcel Energy in
writing that installation is complete. Xcel Energy may then conduct a post-
construction inspection to verify that the Equipment installation has been made
consistent with the PPA and other requirements of this Agreement. Xcel Energy
will then perform the necessary electric connection to energize the Equipment.
1.5 Operation. Licensee must, at Licensee's sole expense, comply with all laws,
orders, ordinances, regulations and directives of applicable federal, state, county,
and municipal authorities or regulatory agencies, including, but not limited to, the
Federal Communications Commission, Federal Energy Regulatory Commission,
the Occupational Safety and Health Administration, the National Electric Safety
Code and the National Electrical Code, as they relate to the operation of the
Equipment and the use of Xcel Energy's Poles.
1.6 Licensee’s Employees and Contractors. In performing the work on the Poles
hereunder, Licensee shall utilize only qualified and competent employees and
contractors knowledgeable in the work to be performed who are familiar with the
facilities and safe practices utilized in, on or around Xcel Energy’s Poles.
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1.7 No Modification. Licensee shall not modify or change the position of the
Equipment attachments or place any additional facilities on the attachment, except
with the prior express written consent of Xcel Energy.
1.8 Removal. Licensee may at any time remove the Equipment from any Pole or Poles
for which it has an approved PPA. Licensee shall provide 60 days written notice
prior to any removal that would require a disconnection from Xcel Energy’s
electric system. All disconnections will be performed by Xcel Energy. The notice
shall indicate the specific Pole or Poles that are affected by the removal.
1.9 Subordination. Nothing in this Agreement shall be construed to in any way deny,
prohibit or interfere with Xcel Energy’s rights and ability to utilize its Poles for
the furnishing of services to its customers. All rights of Licensee hereunder are
subject and subordinate to Xcel Energy’s rights to utilize its Poles. If at any time
Xcel Energy determines that a Pole or space on a Pole occupied by the Equipment
is required for the sole use of Xcel Energy or is no longer suitable for attachment of
the Equipment because of safety or other considerations, Licensee must, at Licensee
expense, comply with orders from Xcel Energy to rearrange, remove, or transfer the
Equipment at Licensee’s sole expense. Failure to comply within 30 days may result
in either rearrangement, removal, or transferring of the Equipment by Xcel Energy
at Licensee’s sole expense.
1.10 Non-Interference. In the performance and exercise of Licensee’s rights and
obligations under this Agreement, the Equipment shall not interfere in any manner
with Xcel Energy's use, maintenance and operation of the Poles or Xcel Energy's
ability to provide service to its customers. Licensee shall not use, nor shall it
permit its employees or contractors to use, operate or maintain any portion of the
Equipment in any way which interferes with the operations of Xcel Energy, at any
time, or other attaching parties of Xcel Energy.
1.11 Utilities. Xcel Energy will perform all electric connections and disconnections to
Equipment. Payment for electric service necessary in connection with the
Equipment shall be Licensee's sole responsibility and will be subject to the terms
and conditions contained in the Electric Service Agreement attached as Exhibit D.
1.12 Inspection and Maintenance. Xcel Energy reserves the right to inspect the
Equipment at reasonable intervals during the term hereof, and to require
maintenance work by Licensee as necessary to maintain compliance with the
Specifications and applicable codes, laws, and regulations. In the event any of
Licensee’s Equipment is found to be in non-compliance and Licensee fails or
refuses to correct the non-compliance within thirty (30) days after being so
notified in writing of the specifics of the non-compliance, Xcel Energy may
perform the work or direct the performance of such work and charge Licensee for
the reasonable, documented cost thereof. By reserving this right hereunder to
inspect and to require or perform maintenance, Xcel Energy undertakes no
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obligations, responsibilities or liabilities whatsoever with respect thereto, except
to the extent of the gross negligence, or willful misconduct of Xcel Energy, its
officers, directors, employees or agents. Xcel Energy’s exercise of such rights
shall be solely within Xcel Energy’s discretion, provided the same are exercised
in a non-discriminatory manner, and shall not relieve Licensee of its obligation to
maintain the Equipment in compliance at all times.
1.13 Damage Repair; Risk to Equipment. In the course of installation, operation and
maintenance of the Equipment, Licensee shall use due care, and any damage to
Xcel Energy’s Poles or other equipment and facilities shall, at the option of Xcel
Energy, be either repaired by and the cost borne by License e or repaired by Xcel
Energy and the cost thereof charged to Licensee. Xcel Energy shall have no
liability to Licensee for any damage to, or destruction or failure to operate, of
Equipment, and Licensee releases and waives any such liability of Xcel Energy
and Licensee shall indemnify and hold harmless Xcel Energy from any claims
relating to damage to, or destruction of or failure to operate of the Equipment ,
even if arising from the negligence of Xcel Energy; provided, this shall not
release Xcel Energy from liability arising solely from Xcel Energy’s gross
negligence or willful misconduct.
1.14 Xcel Energy Inspection of Equipment. Any inspections of the Equipment by Xcel
Energy are made at the option of and solely for the benefit of Xcel Energy and
shall not relieve Licensee for full compliance with the terms and conditions of this
Agreement.
2. PERMITS, LICENSES, GRANTS; NONEXCLUSIVE USE.
Licensee is solely responsible for obtaining from public authorities and private owners of
real property all permits, licenses, certificates, franchises and grants, if any, necessary for
the attachment and operation of the Equipment on the Poles. Licensee acknowledges and
agrees that its use of the Poles as permitted under this Agreement is nonexclusive and Xcel
Energy reserves the right to install and operate its own facilities on the Poles, and to enter
into agreements or arrangements with third parties for attachments to the Poles, and that
Licensee’s rights hereunder are subordinate to all such other arrangements and agreements.
3. TERMINATION OF AGREEMENT.
3.1 Default. Xcel Energy shall have the right to terminate this Agreement in the event
Licensee fails to perform or comply with an obligation under this Agreement and
does not cure such failure within 30 days of Xcel Energy’s written notice to
Licensee identifying such failure.
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3.2 Convenience. This Agreement shall continue in force until terminated by either
party, at any time, on not less than 60 days prior written notice to the other party.
3.3 Removal of Equipment Upon Termination. Upon termination of this Agreement for
any reason, Licensee shall remove all of the Equipment from the Poles at Licensee’s
sole cost and expense within thirty (30) days after termination, and, in the event
Licensee fails to so remove the Equipment, Xcel Energy may do so and Licensee
shall pay the reasonable, documented costs of such removal. Xcel Energy shall
have no liability to Licensee for any damage to or destruction of Equipment
removed by Xcel Energy after Licensee’s failure to timely remove the Equipment.
3.4 Effect of Termination. Termination of this Agreement shall not relieve the parties
of any obligations which accrued prior to such termination.
4. LICENSE FEES. Xcel Energy will not charge Licensee for the attachment of its
Equipment to the Poles.
5. INSURANCE. During the term of this Agreement and so long as Licensee is using
the Poles pursuant to this Agreement, Licensee shall maintain and shall require its
contractors and subcontractors, which do any work, in connection with this
Agreement, to maintain in full force and effect, with a carrier or carriers duly
authorized to do business in the State of Minnesota, the following insurance coverage
which may be modified from time to time by the Xcel Energy, as well as such
insurance necessary to insure the indemnity obligations contained herein:
a) Worker’s compensation insurance complying with the laws of the State of
Minnesota;
b) General liability insurance that includes property damage and bodily injury
insurance with limits of not less than $1,000,000.00 as to any one occurrence and
$1,000,000.00 in the annual aggregate.
c) Comprehensive Automobile Liability with combined single limits of not less than
one million dollars ($1,000,000).
d) Electrical contractors who are authorized to work in the supply space will be
utilized by the Licensee to provide installation of a service duct for service
conductors. These electrical contractors shall carry general liability insurance that
includes property damage and bodily injury insurance with limits of not less than
$5,000,000.00 as to any one occurrence and $5,000,000.00 in the annual
aggregate. The general liability limits can be arranged under single policies for
the full limits required, or by a combination of an underlying policy with t he
balance provided by an Excess or Umbrella policy.
It is understood that the limits of such insurance coverage shall not be construed to limit
Licensee’s liability under this Agreement. Such insurance shall name Xcel Energy, its
officers, agents, and employees as additional insured. Licensee agrees to waive all rights of
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subrogation against Xcel Energy, its officers, agents and employees, with regard to the
insurance coverage provided herein. Licensee shall submit certificates of such insurance to
Xcel Energy prior to the granting of any PPA hereunder, which shall provide for a thirty-day
notice to Xcel Energy prior to any cancellation. In the event of cancellation, equivalent
substitute insurance must be obtained so that appropriate insurance coverage exists at all
times. Licensee shall assure that its insurance carriers shall maintain a rating by a national
rating agency satisfactory to Xcel Energy during the term of this Agreement and any
extensions thereto.
6. INDEMNIFICATION. In consideration for the license granted under this Agreement,
Licensee shall indemnify, release, defend and hold harmless Xcel Energy and its affiliates,
officers, agents and employees, from and against all claims or any liability to a third party,
including reasonable attorneys’ fees, and including but not limited to property or natural resource
damage or remediation asserted by any public authority or other third party (“Claims”), arising
out of or resulting from: (1) allegations of willful misconduct or negligence of the Licensee, its
officers, employees, agents, subcontractors or representatives; (2) any material or equipment
supplied by the Licensee relating to this Agreement; (3) any failure of the Licensee, its officers,
employees, agents, subcontractors or representatives to comply with any term or condition of this
Agreement; (4) the release of any hazardous substances in or around Xcel Energy’s facilities
caused by actions of Licensee or its employees, agents or contractors; or (5) exposure to
hazardous substances by a third party or Licensee’s employees, agents or contractors that are
reasonably anticipated or expected to be present (based on industry knowledge) in or around
Xcel Energy’s facilities. Notwithstanding the foregoing, the Licensee has no obligation to
indemnify Xcel Energy for Claims arising from Xcel Energy’s gross negligence or willful
misconduct.
7. LIMITATIONS ON LIABILITY. XCEL ENERGY SHALL NOT BE LIABLE TO
LICENSEE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, TREBLE, SPECIAL OR
CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND, INCLUDING BUT NOT LIMITED
TO ANY LOSS OF USE, LOSS OF BUSINESS OR LOSS OF PROFIT ARISING OUT OF
THIS AGREEMENT OR ANY OBLIGATION HEREUNDER.
8. ASSIGNMENT. Licensee has no right to assign, sublet, or otherwise transfer this
Agreement, either in whole or in part, without the prior written consent of Xcel Energy.
9. AGREEMENT. This Agreement and each PPA constitutes the entire agreement and
understanding between the parties, and supersedes all offers, negotiations and other
agreements concerning the subject matter contained in this Agreement. There are no
representations or understandings of any kind not set forth in this Agreement. Any
amendments to this Agreement or any PPA must be in writing and executed by both
parties.
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10. CAPTIONS. The captions of this Agreement are inserted for convenience only and are not
to be construed as part of this Agreement or the applicable PPA or in any way limiting the
scope or intent of its provision.
11. NOTICE. Any notice or demand required to be given in this Agreement shall be made by
certified or registered mail, return receipt requested or reliable overnight courier to the
address of other parties set forth below:
Xcel Energy: Northern States Power Company d/b/a Xcel Energy
Tom Breuckman, Facilities Attachments
825 Rice Street
St. Paul, MN 55117
Telephone: (651) 229-2224
cc: Xcel Energy
Attn: General Counsel
414 Nicollet Mall
Minneapolis, MN 55401
Telephone: (612) 330-5500
Licensee:
Any such notice is deemed received one (1) business day following deposit with a reliable
overnight courier or five (5) business days following deposit in the United States mails
addressed as required above. Xcel Energy or Licensee may from time to time designate any
other address for this purpose notice to the other party.
13. GOVERNING LAW. This Agreement and each PPA, and any disputes thereunder, are
governed by and construed under the laws of the State of Minnesota.
14. NOT A JOINT VENTURE. Neither this Agreement nor any PPA establishes and shall not
be construed to establish or create a partnership, joint venture, or other form of business
association between Licensee and Xcel Energy.
15. NO THIRD-PARTY BENEFICIARIES. The provisions of this Agreement are for the
benefit of the parties hereto and not for any other person. This Agreement shall not
provide to any person not a party, assignee or successor of a party, and shall not be
construed to provide any such third-party, with any remedy, claim, liability,
reimbursement, cause of action or other privilege or right in excess of those existing
without reference to this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
NORTHERN STATES POWER COMPANY D/B/A XCEL ENERGY
By:
Name: ______________________________
Title: _______________________________
By: _____________________________
Name: _____________________________
Title: _____________________________
POLE LICENSE AGREEMENT
EXHIBIT A
Xcel Energy Specifications For Private Holiday Ornament Attachments
To Poles
EXHIBIT B
EXISTING HOLIDAY LIGHTING ATTACHMENTS
EXHIBIT C
HOLIDAY LIGHTING
POLE PERMIT APPLICATION
Xcel Energy’s Permit # _____________. Licensee # ____________
This Pole Permit Application (PPA) is made to the Pole License Agreement between Northern
States Power Company d/b/a Xcel Energy and _____________ (“Licensee”) dated ______________, 20__.
Capitalized terms used in this PPA have the same meaning as such terms in the Pole License Agreement
unless otherwise indicated.
A. To be completed by Licensee: Application is made for a permit to make attachments as
follows:
1. Type and Number of Proposed Attachments:
2. Pole Locations (approximate address, also attach map):
3. Licensee Contact for Emergencies:
4. Description of proposed attachments (including a description of the Equipment
and the manner in which the Equipment will be attached to, and removed from,
the Poles): Attachment 2.
5. Special provisions:
Licensee Northern States Power Company d/b/a Xcel Energy
By: By:
Name: Name:
Title: Title:
Date: Date:
EXHIBIT D
ELECTRIC SERVICE AGREEMENT