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HomeMy WebLinkAboutOrdinance 517 . . . ACCEPTANCE OF ORDINANCE NO. 517 CITY OF MOUNDS VIEW, RAMSEY COUNTY, MINNESOTA ACCEPTANCE OF FRANClDSE: WHEREAS, the City Couocil of the City of Mounds View, Ramsey County, MinDesota, introduced Ordinance No. 517 on the 13th day eX Oc:tclb<<, 1992, passed aDd adopced Ordinance No. 517 eutitled: AN ORDINANCE GRANTING 1'0 NOR1lIERN STATES POWER COMPANY, A MINNESOTA CORPORATION, ITS SUCCESSORS AND ASSIGNS PERMISSION 1'0 CONSTRUcr, OPERATE. REPAIR AND MAINTAIN IN THE CITY OF MOUNDS VIEW, MINNESOTA, AN ELECTRIC DISTRIBUTION SYSTEM AND TRANSMISSION UNES, INCLUDING NECESSARY POLES, LINES, FIXTURES AND APPURTENANCES, FOR THE FURNISHING OF ELECTRIC ENERGY TO THE CITY, ITS INHABITANTS, AND OTHERS, AND 1'0 USE THE PUBUC WAYS AND PUBUC GROUNDS OF THE CITY FOR SUCH PURPOSES. which Ordinance was duly published according to law on the 21st day of October 1992, in the New Brighton Bulletin, a newspaper printed and published in the City of New Brighton, County of Ramsey and State of Minnesota, and is the newspaper of record for said City of Mounds View, and which Ordinance is not effective unless accepted in writing by NSP Company. NOW THEREFORE, Northern States Power Company, a Minnesota Corporation for itself and its successors and assigns, does hereby accept aU1he terms and conditions of said Ordinance. IN WITNESS WHEREOF, Northern States Power Company has caused this doa.lment to be executed in its corporate name by its duly authorized persons and its corporate seal to be hereto affixed this 2..l'5t:. day of ~QQ.. 'rv-, ~"'V . 199.2. ~~~ ~;~p~r~ Vice President, Rates & Corporate Strategy . ~ . . . ELECTRIC ENERGY FRANCHISE AGREEMENT ORDINANCE NO. 517 CITY OF MOUNDS VIEW, RAMSEY COUNTY, MINNESOTA AN ORDINANCE GRANT!NG NORTHERN STATES POWER, A MINNESOTA CORPORATION, ITS SUCCESSORS AND ASSIGNS, PERMISSION TO CONSTRUCT, OPERATE, REPAIR AND MAINTAIN THE CITY OF MOUNDS VIEW, MINNESOTA AN ELECTRIC DISTRIBUTION SYSTEM AND TRANSMISSION LINES, INCLUDING NECESSARY POLES, LINES, FIXTURES AND APPURTENANCES, FOR THE FURNISHING OF ELECTRIC ENERGY TO THE CITY, IT'S INHABITANTS, AND OTHERS AND TO USE PUBLIC WAYS AND PUBLIC GROUNDS OF THE CITY FOR SUCH PURPOSES. The City Council of the City of Mounds View ordains: SECTION 1. DEFINITIONS The following terms shall mean: 1.1 city. The City of Mounds View, County of Ramsey, State of Minnesota. 1.2 Company. Northern States Power, a Minnesota corporation, its successors and assigns. 1.3 city utility System. The facilities used for providing sewer, water, or any other public utility service owned or operated by City or agency thereof. 1.4 Electric Facilities. Electric transmission and distribution towers, poles, lines, guys, anchors, ducts, fixtures, and necessary appurtenances owned or operated by the Company for the purpose of providing electric energy for public use. 1.5 Notices. Any notice required by this franchise shall be sufficient if, in the case of notice to the Company, it is delivered to Northern States Power, attention Vice President Gas utility, 825 Rice Street, st. Paul, Minnesota, 55117. Notice to the city shall be delivered to the city Administrator. 1.6 Public Ground. All streets, alleys, public ways, utility easements and public grounds of the City to which it has the right to grant the use to the Company. Section 2. FRANCHISE 2.1 Grant of Franchise. The City hereby grants Company, for a period of twenty (20) years from the Effective Date, the right to transmit and furnish electric energy for 1 / '~ . . . light, heat, power and other purposes for public and private use within and through the limits of the city as its boundaries now exist or as they may be extended in the future. For these purposes, the Company may construct, operate, repair and maintain Electric Facilities in, on, over, under and across the Public Grounds of the City subject to the provisions of this ordinance. The Company may do all reasonable things necessary or customary to accomplish these purposes, subject, however, to zoning ordinances, other applicable ordinances, permit procedures, and to the further provisions of this franchise. 2.2 Effective Date: Written Acceptance. This franchise shall be in force and effect from and after its passage and publication as required by law (and the City Charter), and its acceptance by the Company in writing filed with the Municipal Clerk within 60 days after publication. 2.3 Nonexclusive Franchise. This is not an exclusive franchise. 2.4 Publication Expense. The expense of publication of this ordinance shall be paid by the Company. 2.5 Default. If either party asserts that the other party is in default in the performance of any obligation hereunder, the complaining party shall notify the other party of the default and the desired remedy. The notification shall be written. If the dispute is not resolved within 30 days of the written notice, 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 for breach of the contract,' or either party may take any other action permitted by law. If the Company is in default as to any part of this franchise, the City may, after reasonable notice to the Company and the failure of the Company to cure the default within 60 days, take such action as may be reasonably necessary to abate the condition caused by the default, and the Company agrees to reimburse the municipality for all its reasonable costs and for its costs of collection, inclUding attorney fees. Nothing in this section shall bar the Company from challenging the city's claim that a default has occurred. In the event of disagreement over the existence of a default, the burden of proving the default shall be on the city. SECTION 3. CONDITIONS OF USE. 3.1 Use of Public Ground. Electric Facilities shall be located, constructed, installed and maintained so as not to endanger or unnecessarily interfere with the usual and customary 2 . . . traffic, travel, and use of Public Ground, and shall be subject to permit conditions of the city. The permit conditions may provide for the right of inspection by the City, and the Company agrees to make its Electric Facilities available for inspection at all reasonable times and places. 3.2 Field Locations. The Company shall provide field locations for any of its underground Electric Facilities within a reasonable period of time on request by the City. The period of time will be considered reasonable if it compares favorably with the average time required by the cities in the same county to . locate municipal underground facilities for the Company. 3.3 Permit Reauired. The Company shall not open or disturb the surface of any Public Ground for any purpose without first having obtained a permit from the City, for which the City may impose a reasonable fee to be paid by the Company. The permit conditions imposed on the Company shall not be more burdensome than those imposed on other utilities for similar facilities or work. The mains, services and other property placed pursuant to such permit shall be located as shall be designated by the City. The Company may, however, open and disturb the surface of any Public Ground without a permit where an emergency exists requiring the immediate repair of its facilities. The Company in such event shall request a permit not later than the second working day thereafter. 3.4 Restoration. Upon completion of any work requiring the opening of any Public Ground, the Company shall restore the same, including paving and its foundations, to as good condition as formerly, and shall exercise reasonable care to maintain the same for two years thereafter in good condition. Said work shall be completed as promptly as weather permits, and if the Company shall not promptly perform and complete the work, remove all dirt, rubbish, equipment and material, and put the Public Ground in good condition, the City shall have the right to put it in good condition at the expense of the Company; and the Company shall, upon demand, pay to the municipality the cost of such work performed by the city, including its direct and indirect costs plus ten percent additional as liquidated damages. This remedy shall be in addition to any other remedy available to the city. 3.5 Shared Use of Poles. The Company shall make space available on its poles or towers for City fire, water utility, police or other city facilities whenever such use will not interfere with the use of such poles or towers by the Company, by another electric utility, by a telephone utility, or by any cable television company or other form of communication company. In addition, the city shall pay for any added cost incurred by the 3 . . . Company because of such use by City. 3.6 Relocation of Electric Facilities. Except as provided in Section 3.7, if the City determines to vacate for a City improvement project, or to grade, regrade, or change the line involving any Public Ground, or construct or reconstruct any city utility System involving any Public Ground, it may order the Company to relocate its Electric Facilities at its own expense. The city shall give the Company reasonable notice of plans to vacate for a City improvement project, or to grade, regrade, or change the line involving any Public Ground or to construct or reconstruct any City utility system. if a relocation is ordered within five years of a prior relocation of the same Electrical Facilities, which was made at Company expense, the city shall reimburse the Company for non-betterment expenses on a time and material basis, provided that if a subsequent relocation is required because of the extension of a City utility System to a previously unserved area, the Company may be required to make the subsequent relocation at it expense. Nothing in this Ordinance requires the Company to relocate, remove, replace or reconnect at its own expense its facilities where such relocation, removal, replacement or reconstruction is solely for the convenience of the City and is not reasonably necessary for the construction or reconstruction of Public Ground or City utility System or other City improvement. Nothing herein relieves any person from liability arising out of the failure to exercise reasonable care to avoid damaging Electric Facilities while performing any activity. The city may further require the Company to relocate or remove its Electric Facilities from Public Ground upon a finding by City that the Electric Facilities have become or will become a substantial impairment of the public use to which the Public Ground is or will be put. The relocation or removal shall be at the Company's expense. 3.7 proiects with State or Federal Fundinq. Relocation, removal, or rearrangement of any Company facilities made necessary because of the extension into or through City of a federally-aided highway project shall be governed by the provisions of Minnesota Statutes, section 161.46 as supplemented or amended. It is understood that the right herein granted to Company is a valuable right. city shall not order company to remove, or relocate its facilities when a Public Way is vacated, improved or realigned because of a renewal or a redevelopment plan which is financially subsidized in whole or in part by the Federal Government or any agency thereof, unless the reasonable non-betterment costs of such relocation and the loss and expense resulting therefrom are first paid to Company, but the city need not pay those portions of such for which reimbursement to it is 4 . ' . . . not available. 3.8 Vacation of Public Ground. The City shall give the Company at least two weeks' prior written notice of a proposed vacation of a Public Ground. ~xcept where required for a City street or other improvement project, the vacation of Public Ground, after the installation of Electric Facilities, shall not operate to deprive the Company of its rights to operate and maintain such Electrical Facilities, until the reasonable cost of relocating the same and the loss and expense resulting from such relocation are first paid to the Company. In no case, however, shall the city be liable to the Company for failure to specifically preserve a right-of-way, under Minnesota statutes, section 160.29. SECTION 4. FRANCHISE FEES. 4.1 Se~arate Ordinance. During the term of this franchise, the City may impose on the Company a franchise fee of not more than 4 percent of the Company's gross revenues as hereinafter defined. The franchise fee shall be imposed by a separate ordinance duly adopted by the City Council, which ordinance shall not be adopted nor fee be effective until 60 days after written notice enclosing such proposed ordinance has been served upon the Company by certified mail. Section 2.5 shall constitute the sole remedy for solving disputes between the Company and the City in regard to the interpretation of, or enforcement of, the separate ordinance. No action by the City to implement a separate ordinance will commence until this ordinance is effective. No preexisting ordinance imposing a fee shall be effective against the Company unless it is specifically awarded after the effective date of this ordinance following the procedures of this section 4 for the adoption of a new separate ordinance. 4.2 Terms Defined. The term "gross revenues" means all sums received by the Company from the sale of gas to its retail customers within the corporate limits of the city. Gross revenues excludes any surcharge or similar addition to the company's charges to customers for the purpose of reimbursing the Company for the cost resulting from the franchise fee. \ 4.3 Collection of the Fee. The franchise fee shall be payable monthly, and shall be based on the gross revenues of the Company during the preceding month. The paYment is due on the last business day of the month following the month for which paYment is to be made. the percent fee may be changed by ordinance from time to time; however, each change shall meet the same notice requirements and the percentage may not be changed more often that annually. Such fee shall not exceed any amount which the Company may legally charge its customers prior to 5 . . . . . paYment to the City by imposing a surcharge equivalent to such fee in its rates for gas service. The time and manner of collecting the franchise fee is subject to the approval of the Public utilities Commission, which the Company agrees to use best efforts to obtain. The Company agrees to make its gross revenues records available for inspection by the City at reasonable times. SECTION 5. TREE TRIMMING The Company may trim all trees and shrubs of the City's Public Grounds interfering with the proper construction, operation, repair and maintenance of any Electric Facilities installed hereunder, provided that the Company shall hold the City harmless from any liability arising therefrom, and subject to permit, or other reasonable regulation by the city. SECTION 6. INDEMNIFICATION 6.1 Hold Harmless. The Company shall indemnify, keep and hold the City, its elected officials, officers, employees, and agents free and harmless from any and all claims and actions on account of injury or death of persons or damage to property occasioned by the construction, maintenance, repair, inspection, the issuance of permits, or the operation of the Electric Facilities located in the City. 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, the Company's plans or work. The city shall not be indemnified if the injury or damage results from the performance in a proper manner of acts reasonably deemed hazardous by Company, and such performance is nevertheless ordered or directed by city after notice of Company's determination. 6.2 Litiqation. In the event a suit is brought against the City under circumstances where this agreement to indemnify applies, such suit if written notice thereof is promptly given to the Company within a period wherein the Company is not prejudiced in defense of the claim by lack of such notice. If the Company is required to indemnify and defend, it will thereafter have control of such litigation, but the Company shall 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 every defense or immunity that the City could assert in its oWn behalf. 6 . . . . . SECTION 7. CHANGE IN FORM OF GOVERNMENT. &~y change in the form of government of the City shall not affect the validity of this Ordinance. Any governmental unit succeeding the City shall, without the consent of the Company, succeed to all of the rights and obligations of the City provided in this Ordinance. SECTION 8. SEVERABILITY. If any portion of this franchise is found to be invalid for any reason whatsoever, the validity of the remainder shall not be affected. SECTION 9. PREVIOUS FRANCHISES SUPERSEDED This franchise supersedes any previous gas franchise granted to the Company or its predecessor. SECTION 10. NO WAIVER. Failure to enforce any of these provisions shall not be deemed a waiver of any provision of this franchise. SECTION 11. AMENDMENT. This ordinance may be amended at any time by the City passing a subsequent ordinance declaring the provisions of the amendment, which amendatory ordinance shall become effective upon the filing of the company's written consent thereto with the City Clerk within 90 days after the effective date of the amendatory. ordinance. Ordinance Introduction: Ordinance Adoption: Date of Publication: Effective Date: August 24, 1992 October 13, 1992 October 21, 1992 November 20, 1992 Passed and approved this 13 day of October, 1992. Mayor ATTEST: Clerk-Administrator 7 . . . ON BEHALF OF NORTHERN STATES POWER: Name and Title Name and Title Name and Title APPROVED AS TO FORM: City Attorney 8 Date Date Date ~ I \' , t . . . CITY OF MOUNDS VIEW COUNTY OF RAMSEY STATE OF MINNESOTA ORDINANCE NO. 518 GRANTING NORTHERN STATES POWER, A MINNESOTA . 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 THE PUBLIC GROUND OF THE CITY OF MOUNDS VIEW, MINNESOTA FOR SUCH PURPOSES; AND PRESCRIBING CERTAIN TERMS AND CONDITIONS THEREOF. Motion made by Councilmember Quick, seconded by Councilmember Blanchard to adopt Ordinance No. 518 VOTE: aye aye no Linke Quick Rickaby Blanchard Wuori aye aye Motion Passes: 4 ayes ~ tlrJ/[h?~ 0-~ tha Orduno, City Administrator ----------------------------------------------------------------- STATE OF MINNESOTA) County of Anoka) On this 13 day of October, 1992, before me personally appeared Jerome Linke, Mayor, and Samantha Orduno, city Administrator, to me known to be the person~ described herein and who executed the foregoing instrument and acknowledged that they executed the same as their free act and deed. Subscribed and sworn to before me this I~ day of , 1992. ::::::.-:-- t g~ J. SEveRSON ~ J ~ ~ Carnna. ~~ . . -..... t1~ lV''';<..:)l