Loading...
HomeMy WebLinkAboutOrdinance 625 . . .' ORDINANCE NO. 625 01Y OF MOUNDS VIEW, RAMSEY COUN1Y AN ORDINANCE GRANTING REIJANT ENERGY MlNNEGASCO, A NATURAL GAS UTILl1Y, A DMSION OF REllANT RESOURCES CORPORATION, A DELAWARE CORPORATION, ITS SUCCESSORS AND ASSIGNS, A NONEXCLUSIVE FRANCHISE TO CONSTRUCT, OPERATE, REPAIR AND MAINTAIN FACILlTIES AND EQUIPMENT FOR THE TRANSPORTATION, DISTRIBUTION, MANUFACfURE AND SALE OF GAS ENERGY FOR PUBLIC AND PRIVATE USE AND TO USE THE PUBLIC WAYS AND PUBLIC GROUND OF THE 01Y OF MOUNDS VIEW, MINNESOTA FOR SUCH PURPOSES; AND PRESCRIBING CERTAIN TERMS AND CONDIDONS THEREOF. THE CITY COUNCIL OF MOUNDS VIEW ORDAINS: SECTION 1. DEFINITIONS. For purposes of this Ordinance, the following tenns shall mean: 1.1. 01)'. City Council City Clerk. These terms mean respectively, the City of Mounds View, the Council of the City of Mounds View, and the Clerk of the City of Mounds View. 1.2. City Utility System. Facilities used for providing public utility service owned or operated by the City or agency thereo( including sewer, stonn sewer and water service, street lighting and traffic signal systems but excluding Facilities for providing heating 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, its successors and assigns, including successors and assigns of those portions of the Company that constitute any part or parts or the Gas Facilities subject to this franchise. 1.5. Effective Date. The date on which the ordinance becomes effective under Section 2.2. 1.6. Gas. Natural gas, manufactured gas, mixture of nattm1l gas and manufactured gas or other fonTIS of gas energy. 1.7. Gas Facilities or Facilities. Gas transmission and distnbution pipes, mains, lines, ducts, fixtures, and necessary fucilities, equipment and appurtenances owned, operated or otheIWi.se used by the Company for the purpose of providing gas energy for public use. 1.8. Non-Bettennent Costs. Costs inClUTed 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 seIVed by the party or parties on another party or parties. Notice to Company must be mailed or personally delivered to: Reliant Energy Minnegasco JMS-162951 MU21O-14 . . . v.P. Marketing & Customer Services 800 LaSalle Avenue Minneapolis, MN 55402 Notice to the City must be mailed to: City of Mounds View City CIeri<: 2401 Highway 10 Mounds View, MN 55112-1499 1.10. Public Way. A street, alley, or other public right-of-way within the City. 1.11. Public Ground. Land owned or otherwise controlled by the City for park, open space or similar public purpose. SECTION 2. FRANCHISE. 2.1. Grant of Franchise. The City hereby grants to the Company, until July 1, 2019, the limited right to import, manufacture, transport, distnbute and sell gas for public and private use in 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 (ill) 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 of the City, via the most direct route, as detennined by the City and the Company, to serve the customer account(s) located at the real property desClibed in Exlnbit A attached hereto, subject to fiuther provisions of this ordinance, zoning ordinances, or other applicable ordinances, including pennit procedures, as they may be enacted or amended from time to time. 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 its ~ by the Company in writing filed with the City CIeri<: within 60 days after publication. 2.3. Nonexclusive Franchise. This is not an exclusive franchise. 2.4. Preparation: Publication Expense. The expense of preparation, and publication of this ordinance shall be paid by the Company. 2.5. Default. If the Company is in defuult in the petfonnance of any material part of this franchise for more than 60 days, unless weather conditions or remedial efforts warrant a longer time, after receiving Notice from the City of such default, the City ColUlcil may, by ordinance, tenninate all rights granted hereunder to the Company. The Notice of default shall be in writing and shall specify the provisions of this franchise under which the default is claimed and state the basis therefor. Such Notice shall be served on the Company by personally delivering the Notice to an officer thereof at its principal place of business in Minnesota. 2.6. Notice and Cure. If the Company is in default as to any part of this franchise, the City may, after Notice to the Company and the failure of the Company to cure the default within a reasonable time, take such action as may be necessary to abate the condition caused by the defuult. The Company agrees to reimburse the City for all its reasonable costs inaJlTed in connection with the default. JMS-162951 MU21O-14 . . . 2.7. Contest of Defuult. If the City or Company asserts that the other party is in default in the perfonnance 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 fucilitate further discussion The parties will share the fees and expenses of the mediator equally. 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. 2.8. Continuation of Franchise. If this City and the Company are unable to agree on the tenns ofa new franchise by the time this franchise expires, this franchise will remain in effect lUltil a new franchise is agreed upon, or lU1til 90 days after the City or the Company serves written Notice to the other party of their intention to allow the franchise to expire; provided, however, that if the City is imposing franchise fees at the time of such expiration, such fees will continue on the same tenns and conditions lUltil the new franchise is agreed upon. SECTION 3. CONDmONS OF USE. 3.1. Use of Public Ways and Public' GrolUld. Gas Facilities must be located, constructed, installed, operated and maintained so as not to intetfere with a City Utility System or with the safety and convenience of ordinary travel along and over Public Ways or with the hemth and safety of the inhabitants of the City. Gas Facilities must be located on Public Ways and Public GrolUlds as determined by the City. The Company's construction, reconstruction, operation, repair, maintenance and location of Gas Facilities is subject to other ordinances and regulations of the City consistent with authority granted the City to manage its Public Ways and Public GrolUlds under state and federal law. 3.2. Field Location. Upon request by the City, the Company must provide field locations for any of its Gas Facilities within the period of time required by Minnesota State Statute 2160. 3.3. Pennit Required. The Company may not open or disturb the surface of any Public Way or Public GrolUld without first having obtained a pennit from the City, for which the City may impose a reasonable fee. The pennit 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 GrolUld without a permit if (1) an emergency exists requiring the immediate repair of Gas Facilities and (1i) the Company gives notice to the City before, if poSSIble, commencement of the emergency repair. Within two business days after commencing the repair, the Company must apply for any required pennits and pay the required fees. 3.4. Company Protection of Gas Facilities. The Company must take reasonable measures to prevent the Gas Facilities from arnsing damage to persons or property. The Company must take reasonable measures to protect the Gas Facilities from damage that could be inflicted on the Facilities by persons, property or the elements. The Company and the City will comply with all applicable laws and codes when performing wolk near the Gas Facilities. The City does not waive any of its defenses of immunity or limitations on liability lUlder Minnesota Statutes, Chapter 466. 3.5. Relocation of Facilities in Public Ways. The Company shall promptly and at its own expense, with due regard for seasonal working conditions, pennanently remove and relocate its Facilities in the Public Ways when it is necesscuy to prevent intetference, and not merely for the convenience of the City, in connection with: (1) a present or future local government use of the Public Way for a public project, including a City Utility System; (2) the public hemth or safety; or (3) the safety and convenience of travel over the Public Ways. If such JMS-162951 MU21O-14 . . . relocation is done without an agreement first being made as to who shall pay the relocation cost, the Company's relocation of the Facilities shall not be considered a waiver of any right to be reimbursed for the relocation cost. If the Company claims that it should be reimbursed for a relocation cost, it shall notOy the City within thirty (30) days of receipt of such order. 3.6. Relocation of Facilities in Public GrOlUld. The City may require the Company to relocate Facilities within or remove Facilities from Public GrotUld upon a finding by the City that the Facilities have become or will become a substantial impairment of the public use or ~oyment of ClUTent or planned use of the Public Ground. The relocation or removal will be at the Company's expense when the City properly exercises its police power. The Company does not waive its rights tUlder an existing easement or prescriptive right in the Public Ground. The City will not require the removal of abandoned Gas Facilities in Public GrOtUld, unless those Facilities have become or will become a substantial impainnent of the public use or ~oyment of the Public Ground. 3.7. Street Improvements. Paving or Resurfucing. The City shall give the Company reasonable written Notice of plans for street improvements where paving or resurfucing of a permanent nature is involved. The Notice shall contain the nature and character of the improvements, the streets upon which the improvements are to be made, the extent of the improvements and the time when the City will start the work, and, if more than one street is involved, the order in which this worle is to proceed. The Notice shall be given to the Company a sufficient length of time, considering seasonal wolking conditions, in advance of the actual commencement of the work: to pennit the Company to make any additions, alterations or repairs to its Facilities the Company deems necessaIy. SECTION 4. FRANCHISE FEE. 4.1. Fonn. During the term of the franchise hereby granted, and in addition to pennit 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 within the City, or (Ii) a flat fee per rustomer based on metered service to retail a.tstomers within the City or on some other similar basis, or (ill) a fee based on units of energy delivered to any class of retail a.tstomers within the corporate limits of the City. The formula for a franchise fee based on units of energy delivered may incorporate both commodity and demand units. The method of imposing the franchise fee, the percentage of revenue rate, or the flat rate on the per unit rate may differ for each rustomer class or combine the methods descnbed in (i) - (ill) above in assessing the fee. The City shall seek to use a fonnula 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 fonnula is discriminatory or otherwise places the Company at a competitive disadvantage, the Company shall provide a fonnula that will produce a substantially similar fee amount to the City and reimburse the City's reasonable fees and costs in reviewing the fonnula The City will attempt to accommodate the Company but is tUlder no franchise obligation to adopt the Company-proposed franchise fee fonnula 4.2. 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 60 days after written notice enclosing such proposed ordinance has been served upon the Company by certified mail. The fee shall not become effective tUltil at least 60 days after written notice enclosing such adopted ordinance has been served upon the Company by certified mail. 4.3. Condition of Fee. The separate ordinance imposing the fee shall not be effective against the Company unless it lawfully imposes a fee or tax of the same or substantially similar amount on the sale of gas JMS-162951 MU21O-14 . . . energy within the City by any other gas energy supplier, provided that, as to such supplier, the City has the authority to require a franchise fee or impose a tax. 44 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 amOlmt 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 refimds incurred by the Company. The Company agrees to make available for inspection by the City at reasonabletimes all records necessmy to audit the Company's detennination of the franchise fee payments. SECTION 5. INDEMNIFICATION. 5.1. Tenns. The Company shall defend, indemnifY and hold harmless the City from all liability or claims of liability for bodily injury or death to persons, or for property damage, in which the claim: 5.1.1. Alleges a negligent or otherwise wrongful act or omission of the Company or its employee, agent or independent contractor in installing, maintaining, operating or repairing the Company's Facilities; and alleges that the City is liable, without alleging any independent negligent or otherwise wrongful, act or omission on the part of the City, or 5.1.2. Is based on the City's negligent or otherwise wrongful act or omission in issuing a permit or in :fulling to properly or adequately inspect or enforce compliance with a tenn, condition, or purpose of the pennit granted to the Company. 5.2. Litigation If a suit is brought against the City lUlder circumstances where the agreement in this Section 5 to indemnifY applies, the Company at its sole cost and expense will defend the City in such suit if Notice thereof is given to the Company within a reasonable period. Notice by the City of a claim or action promptly given to the Company within a period wherein the Company is not pr~diced by the lack of notice, constitutes a reasonable period. The City shall not be entitled to reimbursement for its costs incurred prior to notification of the Company of the claims or actions. The Company will thereafter have control of the litigation, but the Company may not settle such litigation without the consent of the City, which consent will not be unreasonably withheld. This section is not as to third parties a waiver of any defense or immunity otherwise available to the City; or to the Company. In defending any action on behalf of the City, the Company shall have available to it every defense or immunity that the City could assert in its own behalf SECTION 6. LIMITATIONS 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 beneficia1y of the agreement or of anyone or more of the terms hereo~ or otherwise give rise to any cause of action for any person not a party hereto. SECTION 7. ASSIGNMENT. The Company, upon notice to the City shall have the right and authority to assign all rights conferred upon it by this franchise to any person The assignee of such rights, by accepting such assignment, shall become subject to the terms and provisions of this franchise. JMS-162951 MU210-14 . . . SECTION 8. CHANGE INFORM OF GOVERNMENT. Any change in the fonn of government of the City shall not affect the validity of this franchise. Any governmental unit succeeding the City shall, without the consent of the Company, automatically succeed to all or the rights and obligations of the City provided in this franchise. SECTION 9. SEVERABILITY. If any portion of this franchise is found to be invalid for any reason whatsoever, the validity of the rest of this franchise shall not be affected. SECTION 10. PREVIOUS FRANCHISE SUPERSEDED. This franchise supersedes and replaces previous franchises granted to the Company or its predecessors, if any. SECTION 11. AMENDMENTS. This ordinance may be amended at any time by the City. An amendatory ordinance becomes effective upon the filing of the CompanYs written consent thereto. SECTION 12. EFFECTIVE DATE OF ORDINANCE. This ordinance takes effect pursuant to the provisions of Section 2.2 contained herein. Read by the City Council of the City of Mounds View this 24th day of May, 1999. Read and passed by the City Council of the City of Mounds View this 28th day of June, 1999. Charles S. Whiting, ity Clerk! Administrator APPROVED AS TO FORM: JMS-162951 MU210-14 . . . EXHmIT A Description of Customer Accounts 1. Lot 1, Block 1, North Star fudustrial Park 2nd Addition (Zep Manufacturing). JMS-162951 MU21O-14 Focus News . AFFIDAVIT OF PUBLICATION . STATE OF MINNESOTA) ss. COUNTY OF RAMSEY) Richard Roberts, being duly sworn on an oath states or affirms that he is the publisher or authorized agent and employee of the publisher of the newspaper known as Focus News, and has full knowledge of the facts which are stated below. (A) The newspaper has complied with all of the requirements constituting qualifi- cation as a qualified newspaper, as provided by Minnesota Statute 331A.02, 331A.07 and other applicable laws, as amended. (B) The printed (Official Publication) City of Mounds View Public Hearing Notice - Ordinance 625 which is attached, was cut from the columns of said newspaper, and was printed and published once each week, for -1- successive weeks; it was first published on Thursday the ~ day of June, 1999, and was thereafter printed and published on every Thursday to and including the _ day of June, 1999; and printed below is a copy of the lower case alphabet from . to Z, both inclusive, which is hereby acknowledged as being the size and kind f type used in the composition and publication of the notice: fr~moo~~'~Y' "\ COlLETTE KAERCHER RceERTS . NOTARY PUSUC-MINNESOTA 6 It "~.It" MY COMMSSlON EXPIRES 1-31.2000 City of Mounds View PUBLIC HEARING NOTICE~ .' COUNTY OF RAMSEY STATE OF MINNESOTJl '1'g~~ti~~:_~?(~~ ~~~0~~~rv1:~t~~y Hall, 2401 Highway 10, Mounds View, MN the City' Council will hear the Second Reading of Ordinance 625, an Ordin~nce granting Reliant Energy Minnegi\IlElO, a natural gas utility, a dlvisiqn orReHant Resources Corporatio~ a '()elawarecor- poration, its su~cessOl's and assigns, a nqnexclusive franchisE} to construct, oper- ate" repair and maintain facilities and equipment for the transportation, distribu- tion, manufacture and sale of gas energy for public and private use and to' use the Public Ways and Public Ground of the City of Mounds. View, Minnesota for such pur- poses: and prescribing certain terms. and conditions thereof. Anyone desiring to be heard with refer- ence to this matter may be heard at this meeting. '., CarT Schmidt Assistant to the City Administrator (June 24, 1999) Mounds View, l'1I_~w Brighton, St. Anthony Focus News By: Title: Publisher Subscribed and sworn to or affirmed before me on this ~ day of June, 1999. ~~~ Notary Public -1 . RATE INFORMATION 1) Lowest classified rate paid by commercial users $ 2.55 per line for comparable space (2) Maximum rate allowed by law for the above matter $ 6.20 per line (3) Rate actually charged for the above matter $ .45rt per line , . Focus News ~ AFFIDAVIT OF PUBLICATION .STATE OF MINNESOTA) ( ') ss. COUNTY OF RAMSEY) Richard Roberts, being duly sworn on an oath states or affirms that he is the pUblisher or authorized agent and employee of the publisher of the newspaper known as Focus News, and has full knowledge of the facts which are stated below. (A) The newspaper has complied with all of the requirements constituting qualifi- cation as a qualified newspaper, as provided by Minnesota Statute 331A.02, 331A.07 and other applicable laws, as amended. (8) The printed (Official Publication) City of Mounds View Ordinance 625 which is attached, was cut from the columns of said newspaper, and was printed and published once each week, for ~ successive weeks; it was first published on Thursday the 21 day of October, 1999, and was thereafter printed and published on every Thursday to and including the _ day of October, 1999; and printed below is a copy of the lower case alphabet from eA to Z, both inclusive, which is hereby acknowledged as being the size and kind of type used in the composition and publication of the notice: abcdefghijklmnopqrstuvwxyz By: frJ-dfJA Title: Publisher Subscribed and sworn to or affirmed before me on this ~ day of October, 1999. ."" COLLETTE l<ASRCHER ROBERTS : NOTARY PWBLIC-MINNESOTA . . '1:.. M'(COWSSlONEXPlRESl-3I.2000 . . n .. .- 1/ fi ~ ~~to~t!M~ Notary Public . RATE INFORMATION (1) Lowest classified rate paid by commercial users $ 2.55 per line for comparable space (2) Maximum rate allowed by law for the above matter $ 6.20 per line (3) Rate actually charged for the above matter $ .45rt per line .J LEGALS I City of.Mounds View ORDINANCE NO. 625 CITY OF MOUNDS VIEW, RAMSEY COUNTY AN ORDINANCE GRANTING RELIANT ENERGY MINNEGASCO, A NATURAL GAS UTILITY, A DIVISION OF RELIANT RESOURCES CORPORATION, A DELAWARE CORPORATION, ITS SUC- CESSORS AND ASSIGNS, A NONEX- CLUSIVE 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 WAYS AND PUBLIC GROUND OF THE CITY OF MOUNDS VIEW, MINNESOTA FOR SUCH PURPOSES; AND PRESCRIBING CERTAIN TERMS AND CONDITIONS THEREOF. . , THE CITY COUNCil OF MOUNDS VIEW ORDAINS: SECTION 1. DEFINITIONS. For pur- poses of this Ordinance, the following terms shall mean: 1.1. Citv Citv Council City Clerk. These. terms mean respectively, the City of Mounds View, the Council of the City of Mounds View, and the Clerk of the City of Mounds View. 1.2. City Utility System. Facilities used for providing publiC utility service owned or operated by the City or agency thereof, including sewer, storm sewer and water service, street lighting and traffic signal systems but excluding Facilities for providing heating or other forms of ener- gy. 1.3. Commission. The Minnesota Public Utilities Commission, or any suc- cessor, agency or agencies, including an agency of the federal government that preempts all or part of the authority to reg- ulate gas retail rates now vested in the Commission: 1.4. Comoany.. Reliant Energy Minnegasco, a division of Reliant Energy Resources Corporation, its successors and assigns, including successors and assigns of-those portions of the Company that constitute any part or parts or the Gas Facilities subject to this franchise. . 1.5. Effective Date. The date on which the ordinance becomes effective under Section 2.2. 1.6. !:aM. Natural gas, manufac- tur.ed~:~of--natural gasaRdmaR- ufactured gas or other forms of gas ener- gy. 1.i. Gas Facilities 'or Facilities. Gas transmission and distribution pipes, mains, lines, ducts, fixtures, and neces- saryfacilities, equipment and appurte- nances owned, operated or otherwise use.d by the Company for the purpose of providing gas energy for public 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 improve- ment to the Facilities. 1.9. ~. A writing served by the party or parties on another party or par- ties. Notice to Company must be mailed or personally delivered to: Reliant Energy Minnegasco V.P. Marketing & Customer Services 800 laSalle Avenue Minneapolis, MN 55402 Notice to the City must be mailed to: City of Mounds View - City Clerk 2401 Highway 10 Mounds View, MN 55112-1499 1.10. Public Way. A street, alley, or other public right-of-way within the City. 1.11. Public Ground. Land owned or otherwise controlled by the City for park, open space or similar public'purpose. SECTION 2. FRANCHISE.' 2.1. Grant of Franchise. The City hereby grants to the Company, until July 1, 2019, the limited right to import, manu- facture, transport, distribute and sell gas for public and private use in the City. This right includes the provision of Gas that Is (I) manufactured by the Company or its affiliates and delivered by the Company, (il) purchased and delivered by. the Company or (iii) purchased from another source by the retail customer and deliv- ered by the Company. For these purpos- es, the Company may construct, operate. repair and' maintain Gas Facilities in, on, over, under and across the Public Way and Public Ground of the City, via. the most direct route, as determined by the City and the C.ompany, to serve the cus- tomer account(s) located at the real prop- erty described in Exhibit A attached here- to, subject to further provisions .o.f this ordinance, zoning ordinances, or other applicable ordinances, including permit procedures, as they may be enacted or amended from time to time. 2.2. Effective.' Date: Written Acqeptance,. This franchise shall be in I force and effect froroand aftel'its passage and publication as required by law, and its acceptance by the Company In writing filed with the City Clerk within 60 days after publication. 2.3~ Nonexclusive Franchise. This is not an exclusive franchise. 2.4. Preoaration' Publication ~. The expense of preparation, and publication of this ordinance shall be paid by the Company. 2.5. ~. If the Company is in default in the performance of any material part of this franchise for more than 60 days, unless weather conditions or reme- dial efforts warran~ a longer time, after receiving Notice from the City of such default, the City Council may, by ordi- nance, term.inate all rights granted here- under to the Company. The Notice of default .shall be in writing and .shall specify the provisions of this franchise under - which the default is 'claimed and state the basis therefor. Such Notice shall be served on the Company by personally delivering the Notice to an officer thereof at its principal place of business in , Minnesota. . . 2.6. Notice and Cure., If the Company is in. default as to any part of this franchise, the City may, after Notice to the Company and the failure of the Company to cure I.he default within a rea- sonable time, take such action as may be necessary to abate the. condition caused by the default. The Company agrees to reimburse the City for all Its reasonable costs incurred in connection with the default. 2.7. Contest of Default. If the City or Company asserts that the other party is in default in the performance of any oblig- ation hereunder, the complaining party .must notify the other party in writing of the default and the desired remedy; Representatives of the parties must prol\1ptly 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 share the fees and expenses of the mediator equally, 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 par- ty may commence an action in District Court to interpret and enforce this fran- -cruse .orfor'such1l1herc-relief as may be permitted by law. 2.8. Continuation of Franchise. If this City and the Company are unable to agree on the terms of a new franchise by the time this franchise expires, this fran- chise will remain in effect until a new fran- chise is agreed upon, or until 90 days after the City or the Company serves writ- . ten Notice to the otl1er party of their inten- tion to allow the franchise to expire; pro- vided, however, that if the City is imposing franchise fees at the time of such expira- tion, such fees will continue on the same terms and conditions until tne new fran- chise is agreed upon. SECTION 3. CONDitiONS OF USE. 3.t. Use of Public Ways and Public ~. Gas Facilities must be located, constructed. installed, operated and main- tained so as not to interfere with a City Utility System or with the safety and con- venience of ordinary travel along and over Public Ways or with the health and safety of the inhabitants of the City. Gas Facilities must be located on Public Ways and Public Grounds as determined by the City. The Company's construction, recon- struction, operation, repair, maintenance and location of Gas Facilities is subject to other .ordinances and regulations of the City consistent with authority granted the . City to manage its Public Ways and Public Grounds Ulider state and federal law. 3.2., Field Location. Upon request by the City, the Company mustprovide field locations for" any of its Gas Facilities within the period of time required by Minnesota State Statute 2160. 3.3. Permit Reauired. The Company may 110t open or disturb the sur- face 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 faciHties or work. The Company may, however, open and disturb the surface of any Public Way or Public Ground without a permit if (i) an emergency exists requiring the Immediate repair of Gas .Facilities and (II) the Company gives notice to the City before, if possible, commencement of the emer- gency repair. Within two business days after commenc.ing .the repair,the Company must apply for any requlred per- mits and pay the re~repfees, 3.4. Comosny Pro~oi1'on .of Gas ~. The Company must take rea- sonable measures to prevent the Gas Facilities from causing damage to persons or property. The Company must take rea- sonable measure.s to protect the Gas I~- Facilities from damage that could be rate ordh1ance imposing the fee shall not inflicted on the Facilities by peRlons, prop- be effective against the Company unless it erty or the elements. ~ The Company and lawfully Imposes a fee or tax of the same the City will comply with all applicable orsubstafltlally similar amount on the sale laws and codes when performing work of gas energy within the City by any other near the Gas Facilities. The City does not gasel"lergy supplier, provided that, as to waive any of Its defenses of Immunity or sUl::h supplier, the City has the authority to limitations Qnliablllty under Minnesota require a franchise fee or impose a tax. Statutes, Chapter 466. 4.4. Collection of Fee. The fran- 3.5. Relocation of Facilities in chise fee shall be payable not less than Public Ways. The Company shall prompt- quarterly during complete billing months of Iy and at its own expense, with due regard the period for which payment is to be for seasonal working conditions, per!lla" made. The franchise fee formula may be nently remove and relocate its Faciliti~l! Iii "changed from time to time; however, the the Public Ways when it is necessarY t~ . 'change shall meet the same notice, prevent interference, and not'merety.-~ requirc6ments and the fee may not be the convenience of the City, in c()Onectlo~: changed more often than annually. Such with: (1) a present or future local govern,. fee shall not exceed any amount which ment 'use of the Public Way for, a public the Company may legally charge to its project, including a City Utility System; (2), customers prior to payment to the City. the public health or safety; or (3) the safe1 Such fee Is subject to subsequent reduc- ty and convenience of trave.1 over the tions. to ac.count for uncollectibl~M . Public Ways. If such relocation is done customer 'refunds incurred by the without an agreement first being made all CQmpany.., The Company agrees to make to who shall pay the relocation cost, the available for inspection by the City at rea- Company's relocation of the Facilities sonable times all records necessary to shall not be considered a waiver of any audit the Company's determination of the right to be reimbursed for. the relocation. franchise fee payments. cost. If the Company claims that it should SECTION 5. INDEMNiFICATION. be reimbursed for a relocation cost. it 5.1.~. The Company shall shall notify the City within thirty (30) days defend, indemnify and hold harmless the of receipt of such order. City from all liability or claims of liability 3.6. Relocation of Facilities in for bodily injury or death to persons, or for Public Ground. The City may require the property damage, in which the claim: Company to relocate Facilities within Or 5.1.1. Alleges a negligent or other- remove Facilities from Public. Ground wise wrongful act or omission of the upon a finding by the City that the Company or its employee, agent or inde- Facilities have become or will become a pendent contractor in Installing, maintain- substantial impairment of the public use or. ing, operating or repairing .the Company's enjoyment of current or planned use of the' Facilities; and alleges that the City is Public Ground. The relocation or removal liable, without alleging any independent will be at the Company's expense when negligent or otherwise wrongful, act or the City properly exercises its police pow- omission on the part of the City; or er. The Company does not waive Its 5.1.2. Is based on the City's negligent rights under an existing easement or pre- or otherwise wrongful act or omission in scriptive right In ihe Public Ground. The. Issuing a permit or in failing to properly or City will not require the removal of aban- adequately inspect or enforce compliance doned Gas Facilities In Public .Ground, with a term, condition, or purpose of the unless those Facilities have become or permit granted to the Company. will become a substantiallmpalrrrient of 5.2.L1ti9atlon. If a suit is brought the public use or enjoyment of the Public against the City under circumstances Ground. . where the agreement in this Section 5 to 3:7. Street Imorovements Pavlna indemnify applies, the Company at its sole or Resurfacino. The City shall give the cost and expense will defend the City in Company reasonable written Notice of such suit if Notice thereof is given to the plans for street improvements where Company within a reasonable period. paving or resurfacing of a permanent. Notice by the City of a claim or action nature is involved. The Notice shall con- prori'lptly given to the Company within a taln the nature and character of the, period wherein the Company Is not preju- -Improvements,the' sbeets upon whICh the>'~bythe ~ack of notice, constitutes a Improvements are to be made,. the'extent reasonable period. The City shall not be of the improvements and the time when entitled to reimbursement for its costs the City will start the work, and, It more' Incurred prior to notification of the than one street is involve(l, the order in Company of the claims or actions. The which this work is to proceed. The Notice Company will thereafter have control of shall be given to the. Company a sufficient the litigation, but the Company may not length of time, considering seasonal work- settle such. litigation without the consent of ing conditions, in advance of. the actual . the City, which consent will not be un rea- commencement of the work to permit the sonably withheld. This section is not as to Company to make any additions, alter- third parties a waiver of any defense or ations or repairs to Its Facilities the Immunity otherwise available to the City; Company deems necessary. or to the Company. In defending any SECTION 4. FRANCHISE FEE. action on behalf of the .City, the Company 4.1. EQrm. During the term of the shall have available to it every defense or franchise hereby granted, 'and In addition immunity thatthe City could assert in its to permit fees being Impose(lor that the own behalf. City has a right to impose; the City may 'SECTION 6. LIMITATIONS ON charge the Company a franchise fee. The APPLICABILITY. fee may be (i) a percentage of gross rev- This Ordinance constitutes a franchise enues received by the Company for, Its agreement betwpen the City and the operations within the City, or (Ii) a flat fee Company. No provision of this franchise per customer based on metered service to inures to the benefit of any third person, retail customers within the City or on including the public at large, so as to con- some other similar basis, or (iil) a fee stitute any such person as a third-party based on units of energy delivered to any beneficiary of.the agreement or of anyone class of retail customers within.the-corpo- or more of the terms hereof, or otherwise rate limits of the City. The fonriula for a give rise to any c;:ause of action for .any franchise fee based on units of.. energy person not a party hereto. delivered may incorporate both commo(lity SECTION 7. ASSIGNMENT. and demand units. The method of Impos- The Company, upon notice to the City ing the franchise fee; the percentage of shall have the right and authority to assign revenue rate, or the flat rate.on the per all rights conferred upon it by this fran- unit rate may,dlffer for each customer chlseto any person. The assignee of class or combine the methods described such rights, by accepting such assign- In (i) - (Iii) above in assessing the fee. ment, shall become subject to the terms The City shall seek to use a formula that and provisions of this franchise. provides a stable and predictable amount SECTION 8. CHANGE IN FORM OF of fees, without placing the Company at a GOVERNMENT. competitive disadvantage.' If the Any change in the fo.rm of government Company claims that the City-required fee. of the City shall not affect the validity of formula is discriminatory or otherwise this franchise. . Any governmental unit places the Company at a competitive dls- succeeding the City shall, without the con- advantage, the Company shall provide a sent of the Company, automatically suc~ formula that will produce a substantially ceed to all or the rights and obligations of similar fee amount to the City and reim: the City provld~d in this franchise. burse the City's reasonable fees and costs SECTION 9. SEVERABILITY. in reviewing the formula. The City will . If any portion of this franchise is fo.und attempt to accommodate the Company but to be Invalid for' any reason whatsoever, is under no franchise obligation to adPpt the validity of the rest of this franchise the Company~proposed franchise fee for- shall not be. affected. mula. . SECTION 10. PREVIOUS FRANCHISE 4.2. Separate Ordinance. The fran- SUPERSEDED. chlse fee shall be imposed by separate This franchise supersedes and ordinance duly adopted by the City replaces previous franchises granted to Council, which ordinance shall not .be the Company or its predecessors, if any. adopted until at least 60 days afterwrltten SECTION 11. AMENDMENTS. notice enclosing such proposed ordlnilnce This ordinance may be amended at has. been served upon the Company by any time by the City. An amendatory ordi- certified mail. The fee shall notbecome.nance becomes effective upon the filing of effective until at least 60. days after written the Company's written consent thereto. notice encloSing such adopted ordinance . SECTION 12. EFFECTIVE DATE OF has been served upon the Company by ORDINANCE. 'certified mail. ' This. ordinance takes effect pursuant to 4.3. Condition .of Fee. The sepa- the provisions of Section 2.2 contained Focus NewS-Thurs,Qct. 21, 1999 -'-19 herein. '. Read by the City council of the City of Mound!! View this 24th day of May, 1999. Read and passed by the City Council of the City of Mounds View this 28th day of June, 1999. Dan Coughlin, Mayor Charles S. Whiting, City Clerk/Administrator APPROVED AS TO FORM: Aobert C. Long, City Attorney EXHIBIT A Description of Cu'stomerAccounts 1 Lot 1, Block' 1, North Star Industrial Park 2nd Addition (Zep Manufacturing) . (October 21, 1999) Moun(ls View, New Brighton, St. Anthony Focus News