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HomeMy WebLinkAbout1993.11.15 ORD 1993-288 CITY OF HUGO, WASHINGTON COUNTY, MINNESOTA ORDINANCE NO, 93-288 AN ORDINANCE GRANTING TO ANOKA ELECTRIC COOPERATIVE, A MINNESOTA CORPORATION, ITS SUCCESSORS AND ASSIGNS, PERMISSION TO CONSTRUCT, OPERATE, REPAIR AND MAINTAIN IN THE CITY OF HUGO, MINNESOTA, AN ELECTRIC DISTRIBUTION SYSTEM AND TRANSMISSION LINES, INCLUDING NECESSARY POLES, POLE LINES, FIXTURES AND APPURTENANCES, FOR THE FURNISHING OF ELECTRIC ENERGY TO THE CITY AND ITS INHABITANTS,A AND OTHERS, AND TO USE THE PUBLIC WAYS AND PUBLIC GROUNDS OF SAID CITY FOR SUCH PURPOSES. THE CITY COUNCIL OF THE CITY OF HUGO, WASHINGTON COUNTY, MINNESOTA, DOES ORDAIN: SECTION 1. Definitions Subd. 1. In this ordinance "City" means the City of Hugo, County of Washington, State of Minnesota. Subd. 2. "City Utility System" refers to the facilities used for providing any public utility service owned or operated by City or agency thereof, including sewer and water service. Subd. 3. "Company" means Anoka Electric Cooperative, a Minnesota corporation, its successors and assigns. Subd. 4. "Notice" means a writing served by any party or parties on any other party or parties. Notice to Company shall be mailed to the General Manager, Anoka Electric Cooperative, 2022 N. Ferry St., Anoka, MN 55303. Notice to City shall be mailed to the City Clerk. Subd. 5. "Public grounds" means city parks and squares as well as land held by the City for the purpose of open space. Subd. 6. "Public ways" means streets, avenues, alleys, parkways, and other public rights of way within the City. SECTION 2. Grant of Franchise City hereby grants Company, for a period of 20 years from the date hereof, the right to transmit and furnish electric energy for light, heat, power and other purposes for public and private use within and through the limits of City as its boundaries now exist or as they may be extended in the future. For these purposes, Company may construct, operate, repair and maintain electric distribution system and electric transmission lines, including poles, pole lines, duct lines, fixtures, and any other necessary appurtenances in, on, over, under and across the public ways and public grounds of City. Company may do all reasonable things necessary or customary to accomplish these purposes, subject, however, to the further provisions of this franchise. SECTION 3. Restrictions Subd. 1. Company facilities included in such electric distribution system, transmission lines and appurtenances thereto, shall be located and constructed so as not to interfere with the safety and convenience of ordinary travel along and over said public ways. Company's construction, operation, repair, maintenance and location of such facilities shall be subject to such reasonable regulations as may be imposed by City to pursuant to charter, ordinance or statute. Subd. 2. Company shall not construct any new installations within or upon any public grounds without receiving the prior written consent of an authorized representative of City for each such installation. This provision is not applicable for installations within a Company right-of-way acquired by easement or prescriptive right. Subd. 3. Company shall provide field locations for all its underground facilities when requested by City with a reasonable period of time. The period of time will be considered reasonable if it compares favorable with the average time required by the cities in the County to locate municipal underground facilities for Company. ("County" refers to the County in which City is located.) SECTION 4. Tree Trimming Company is also granted the permission and authority to trim and/or spray, with herbicides approved by the Environmental Protection Agency, all trees and shrubs in the public ways and public grounds of City interfering with the proper construction, operation, repair and maintenance of any poles, pole lines, and fixtures or appurtenances installed in pursuance of the authority hereby granted, provided that Company shall save City harmless from any liability in the premises. SECTION 5. Service Rates and Area The company will provide electric service at published rates which fairly reflect the cost of doing business on its utility system and as approved by the Rural Electrification Administration, Washington, D.C. The area within the City in which the Company may provide electric service currently is subject to the provisions of Minnesota Statutes, Section 216B.40. SECTION 6. Relocating Subd. 1. Whenever City shall grade, regrade, or change the line of any public way, or construct or reconstruct any City utility system therein and shall, in the proper exercise of its police power, and with due regard to seasonable working conditions, when necessary, and after approval of its final plans have been obtained, order Company to relocate permanently its lines, services and other property located in said public way, Company shall relocate its facilities at its own expense. City shall give company reasonable notice of plans to grade, regrade or change the line of any public way or to construct or reconstruct any City utility system therein. However, after Company has so relocated, if a subsequent relocation or relocations shall be ordered within five (5) years from and after first relocation, City shall reimburse Company for such non-betterment relocation expense which Company incur on a time and material basis; provided, if subsequent relocations are required because of the extension of City utilities to previously unserved areas, Company may be required to relocate at its own expense at any time. Subd. 2. Nothing contained in this franchise shall require company to relocate, remove, replace or reconnect at its own expense its facilities where such relocation, removal, replacement or reconnection is for convenience and not of necessity in the construction of a City utility system or extension thereof. The provisions of this Section 6 requiring Company to relocate apply only to electric facilities constructed in reliance on a franchise and the Company does not waive its rights under an easements, prescriptive right or state or county permit. Subd. 3. Any 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 Statues Section 161.46 as supplemental or amended; and further, it is expressly understood that the right herein granted to Company is a valuable property right and City shall not order Company to remove or relocate its facilities without compensation when a public way is vacated, improved or re-aligned 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. Subd. 4. Nothing contained herein shall relieve any person, persons, or corporations from liability arising out of the failure to exercise reasonable care to avoid injuring Company's facilities while performing any work connected with grading, regrading, or changing the line of any public way, or with the construction or reconstruction of any City utility system. SECTION 7. Indemnification Company shall indemnify, keep and hold City free and harmless from any and all liability on account of injury to persons or damage to property occasioned by the construction, maintenance, repair or operation of Company's electric facilities located in, on, over, under, or across the public ways and public grounds of City, unless such injury or damage grows out of the negligence of City, its employees, or agents, or results from the performance in a proper manner of acts reasonably deemed hazardous by Company, but such performance is nevertheless ordered or directed by City after notice of Company's determination. In the event a suit shall be brought against City under circumstances where the above agreement to indemnify applies, Company at its sole cost and expense shall defend 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 such notice is not reasonably given as hereinbefore provided, Company shall have no duty to indemnify nor defend. If Company is required to indemnify and defend, it will thereafter have complete control of such litigation, but Company may not settle such litigation without the consent of 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 City; and Company, in defending any action on behalf of City shall be entitled to assert in any action every defense or immunity that City could assert in its own behalf. SECTION 8. Vacation of Public Ways The City shall give the Company at least two weeks' prior written notice of a proposed vacation of a public way. Except where required solely for a City improvement project, the vacation of any public way, after the installation of electric facilities, shall not operate to deprive 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 Company. In no case, however, shall City be liable to the Company for failure to specifically preserve a right-of-way, under Minnesota Statutes, Section 160.29. SECTION 9. Written Acceptance Company shall, if it accepts this ordinance and the rights and obligations hereby granted, file a written acceptance of the rights hereby granted with the City Clerk within ninety (90) days after the final passage and any required publication of this ordinance. SECTION 10. Provisions of Ordinance Subd. 1. Every section, provision, or part of this ordinance is declared separate from every other section, provision, or part; and if any section, provision or part shall be held invalid, it shall not affect any other section, provision or part. Where a provision of any other City ordinance conflicts with the provisions of this ordinance, the provisions of this ordinance shall prevail. Subd. 2. If either party (City or Company) asserts that the other party is in default in 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 permitted by law or equity for breach of contract, or either party may take any other action permitted by law. Subd. 3. This ordinance constitutes a franchise agreement between the City and the Company as the only parties and no provision of this franchise shall in any way inure 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 in any person not a party hereto. . SECTION 11. Public Expense The expense of any publication of this franchise required by law shall be paid by Company. SECTION 12. Effective Date This ordinance is effective as provided by statute or charter, and upon acceptance by Company as provided in Section 9. 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I loaoo_ ., - �- -.. 1 _„ I_' - - '--' r -Y e° .�- - - ,-.• =--'_ _ _ -.KEYSTONE AVE.N. 4 n i f3yK a - z i i n i i ri 3 i 3 i i 3 $ s z Bo 11 3 3 B 3 3 g M 4 y y y 4 4 y y 1 y y 4 y 4 M y rN w N H H y H F F F F z z z z z z z z z z z s M- i �, DETAIL MAP _ 4P(C.,110j-"'"--)161) w-- CO p010�. Z a/ q N *Electrical *TELEPHONE BOUNDARY00 ANOKA ELECTRIC COOPERATIVE i" _ *PIPELINES 2022 NORTH FERRY STREET *Z CICI -4 `� -1 * HOUSE NUMBERING *TRANSMISSION LINES ANOKA, MINNESOTA 55303 * PLAITED AREA.- DRAWN BY: PLS DATE: 7-1 83 REVISED BY: PLS DATE: 11-1-92 B AFFIDAVIT OF PUBLICATION STATE OF MINNESOTA ss COUNTY OF WASHINGTON Duane A. Rasmussen, being duly sworn, on oath says that he is the publisher or authorized agent and employee of the publisher of the newspaper known as The Times, and has full knowledge of the facts which are stated below: (A) The newspaper has complied with all of the requirements con- stituting qualification as a legal newspaper, as provided by Minnesota CITYOFHUGO Statute 331A.02, 331A.07 and otherapplicable laws, as amended. The Hugo City Council will hold a pub- lic hearing on Monday, November 15, 1993,at 7:05 p.m.,Hugo City Hall,to con- /B The sider adoption of the following proposed \ ) printed ordinance: An ordinance granting to Anoka Electric Cooperative,a Minneso- I lh l i c notice to corporation, its successors and as- — signs permission to construct, operate, repair and maintain in the City of Hugo, which is attached was cut from the columns of said newspaper, and Minnesota,an electric distribution sys- tem tem and transmission lines, including necessary poles,pole lines,fixtures and was printed and published once each week, for one successive appurtenances, for the furnishing of electric energy to the City and its inhab- itants,and others,and to use the public weeks; it was first published on Thursday , the 4 day ways and public grounds of said City for such purposes.A full and complete copy of the proposed ordinance is available in of November 19 93, and was thereafter printed and published the office of the City Clerk for review. Any one wishing to comment on this -natter will be heard at this time. each week to and including Thursday 'the 4 day /s/Mary Ann Creager Mary Ann Creager City Clerk of November , 1993 (Published in THE TIMES November 4,1993) By: ' -a:,‘A-44.,4.- 0.0t14-14-4-14.2.4.--V. TITLE: Publisher Subscribed and sworn to before me on this fourth day of November , 19 93 �f01, ARD D LESTRUD ,* ' , , NI TARP PLI e• MINNESOTA ,. gA "` ( N COUNTY -'�""�''• MY COMMISION EXPIRES • • .w;.v- APRIL 18, 1995 (1)Lowest classified rate paid by commercial users for comparable space $ 5.30 col.inch (2)Maximum rate allowed by law for the above matter $ 5.61 col.inch (3)Rate actually charged for the above matter $ 5.30 col.Inch (4)Rate actually charged for additional insertions $ 2.65 col.Inch AFFIDAVIT OF PUBLICATION CITY OF HUGO STATE OF MINNESOTA ss COUNTY OF WASHINGTON CITY OF HUGO,WASHINGTON COUNTY,MINNESOTA ORDINANCE NO.93-288 Duane A. Rasmussen , being duly sworn, on oath says that he is the AN ORDINANCE GRANTING TO ANOKAELECTRICCOOPERATIVE,A publisher or authorized agent and employee of the publisher of the MINNESOTA CORPORATION, ITS SUCCESSORS AND ASSIGNS, PER- MISSION TO CONSTRUCT,OPERATE, newspaper known as The Times, and has full knowledge of the facts REPAIR AND MAINTAIN IN THE. CITY OF HUGO, MINNESOTA, AN ELECTRIC DISTRIBUTION SYSTEM which are stated below: AND TRANSMISSION LINES, IN- CLUDING NECESSARY POLES,POLE LINES, FIXTURES AND APPURTE- (A) The newspaper has complied with all of the requirements con- NANCES,FOR THE FURNISHING OF ELECTRIC ENERGY TO THE CITY AND ITS INHABITANTS, AND OTH- stituting qualification as a legal newspaper, as provided by Minnesota ERS, AND TO USE THE PUBLIC WAYS AND PUBLIC GROUNDS OF SAID CITY FOR SUCH PURPOSES. Statute 331A.02, 331A.07 and other applicable laws,as amended. THE CITY COUNCIL OF THE CITY OF HUGO, WASHINGTON COUNTY, MINNESOTA,DOES ORDAIN: (B)The printed SECTION 1.Definitions Subd. 1. In this ordinance "City" eans the City of Hugo,County of Wash- public nofice ;ton,State of Minnesota. , Subd.2. "City Utility System"refers to the facilities used for providing any which is attached was cut from the columns of said newspaper, and public utility service owned or operated byCity or agency thereof, including sewer and water service. was printed and published once each week, for one successive se Subd. 3. "Company" means Anoka ElratCooperative,sa Mand sota cor- poration, weeks; it was first published on Thursday ,the 25 day its successors and assigns. Subd. 4. "Notice" means a writing served by any party or parties on any of November 19 93 and was thereafter printed and published other party or parties.Notice to Compa- ny shall be mailed to the General Man- ager,Anoka Electric Cooperative,2022 each week to and including Thurs N.Ferry St.,Anoka,MN 55303.Notice to day ,the 2 5 day City shall be mailed to the City Clerk. Subd.5."Public grounds"means city of November 19 93 parks and squares as well as land held by the City for the purpose of open space. Subd.6"Public ways"means streets, avenues, alleys, parkways, and other BY: (2, vv, public rights of way within the City. SECTION 2.Grant of Franchise City hereby grants Company,for ape- TITLE: Publisher rind of 20 years from the date hereof,the right to transmit and furnish electric en- ergy for light, heat, power and other purposes for public and private use with- Subscribed and sworn to before me on in and through the limits of City as its boundaries now exist or as they may be this twenty-fifth extended in the future.For these purpos- es, Company may construct, operate, repair and maintain electric distribution dayof November93 system and electric transmission lines, , 19 including poles, pole lines, duct lines, fixtures,and any other necessary appur- tenances in,on,over,under and acros &1.--(A_„0 tht wnys and public grreasonsable ole 6. City. Company may do all reasonable things necessary or customary to ac- Notar Public complish these purposes,subject,how- ever, to the further provisions of this franchise. T HOWA D 4Q LESTRUD SECTION 3.Restrictions (NAtAAhab 9CY• MINNESOTA Subd. 1. Company facilities included ! � WASHINGTON COUNTY ,n such electric distribution system, MY GOMMISION EXPIRES transmission lines and appurtenances i thereto,shall be located and constructed APRIL 16. 1995 so as not to interfere with the safety and ( convenience of ordinary travel along users for comparable space $ 5.30 col.inch and over said public ways. Company's construction,operation,repair,mainte- nance and location of such facilities (2)Maximum rate allowed by law for the above shall be subject to such reasonable regu- lations as may be imposed by City to matter $ 5.61 col.inch pursuant to charter,ordinance or stat- ute. Subd.2.Company shall not construct (3)Rate actually charged for the above matter $ 5.30 col.Inch any new installations within or upon any public grounds without receiving the pri- - or written consent of an authorized rep- (4)Rate actually charged for additional resentative of City for each such instal- insertions $ 2.65COI.Inch lation.This provision is not applicable for installations within a Company right-of-way acquired by easement or prescriptive right. Subd.3. Company shall provide field Subd. 4. Nothing contained herein locationstieswhen for alle itsoby underground witar facili- shall relieve any person,persons,or cor- sonabl enrequested by.City with i leo- Where aprovision of anyother City period of time. The period of potations from liability arising out of the ordi- time will be considered reasonable if it failure to exercise reasonable care to nance conflicts with the provisions of compares favorable with the average avoid injuring Company's facilities this ordinance,the provisions of this or- timewhile performing any work connected dinance shall prevail. locate required by the cities in the County with grading, regrading, or changing Subd.2.If either party(City or Corn- tiesto municipal undergroundCyfacili- an (asserts that the other partyis in for Company. ("County" refers to the line of any public way,or with the pany construction or reconstruction of any default in performance of any obligation theSECCounty in which Cityis located.) City utility system. hereunder,the complaining party shall pi4.s Tree Trimming notifythe other partyof the default and Company is also granted the permis- SECTION 7.Indemnification Company shall indemnify, keep and the desired remedy. The notification withon and authority top trim and/or the spray, shall be written.If the dispute is not re- herbicides approved by Envi- hold City free and harmless from any P re- ronmental Protection Agency,all trees and all liability on account of injury to solved within 30 days of the written no- and shrubs in the public ways andpublic persons or damage to property occa- lice,either party may commence an ac- groundssioned by the construction, mainte- lion in District Court to interpret and of City interfering with the enforce this franchise or for such other proper construction, operation, repair nance,repair or operation of Company's electric facilities located in, on, over, relief as may permitted by law or equity and maintenance of any poles, pole under, or across the public ways and for breach of contract, or either party lines,and fixtures or appurtenances in- maytake anyother actionpermitted stalled in pursuance of the authority public grounds of City,unless such inju- by 'iereby granted,provided that Company ry or damage grows out of the negli- law.. -hall save City harmless from any liabil- gence of City,its employees,or agents, Subd.3.This ordinance constitutes a or results from the performance in a franchise agreement between the City ity in the premises. proper manner of acts reasonably and the Company as the only parties and SECTION 5.Service Rates and Area P provision of this franchise shall in The company will provide electric ser- deemed hazardous by Company, but no vice at published rates which fairly re- such performance is nevertheless or- any way insure to the benefit of any fleet the cost of doing business on its dered or directed by City after notice of third person (including the public at Company's determination.In the event large)so as to constitute any such per- utility system and as approved by the a suit shall be brought against City un- son as a third party beneficiary of the Rural Electrification Administration, der circumstances where the above agreement or of any one or more of the Washington,nwhich, D.C. The area may within the terms hereof,or otherwisegive rise to City in the Company may provide agreements indemnify an axpe s, shall anycause of action in anyrson not a pany at its sole cost and expense shall Pe defend City in such suit if written notice party hereto. thereof is promptly given to Company SECTION 11.Public Expense electric service currently is subject to within a period wherein Company is not The expense of any publication of this the provisions of Minnesota Statutes, prejudiced by lack of such notice. If franchise required by law shall be paid Section 2168.40. such notice is not reasonably given as by Company. SECTION 6.Relocating hereinbefore provided, Company shall SECTION 12.Effective Date Subd. 1. Whenever City shall grade, have no duty to indemnify nor defend.If This ordinance is effective as provided regrade,or change the line of any public Company is required to indemnify and by statute or charter,and upon accep- way, or construct or reconstruct any defend,it will thereafter have complete lance by Company as provided in Sec- City utility system therein and shall,in control of such litigation,but Company lion 9. the proper exercise of its police power, may not settle such litigation with the 1993PPassed and approved: November 15, and with due regard to seasonable work- consent of City,which consent shall not ing conditions,when necessary,and af- be unreasonably withheld.This section /s/Walter L.Stoltzman ter approval of its final plans have been is not,as to third parties,a waiver of Mayor obtained, order Company to relocate any defense or immunity otherwise Attest: permanently its lines,services and oth- available to City; and Company,in de- Mary Ann Creager er property located in said public way, fending any action on behalf of City shall City Clerk Company shall relocate its facilities at be entitled to assert in any action every (Published in THE TIMES its own expense.City shall give compa- defense or immunity that City could as- November 24.1993) ny reasonable notice of plans to grade, sert in its own behalf. regrade or change the line of any public SECTION 8.Vacation of Public Ways way or to construct or reconstruct any The City shall give the Company at City utility system therein.However,af- least two weeks'prior written notice of a ter Company has so relocated,if a sub- proposed vacation of a public way.Ex- sequent relocation or relocations shall cept where required solely for a City im- be order within five(5)years from and provement project,the vacation of any after first relocation, City shall reim- public way,after the installation of elec- burse Company for such non-better- Eric facilities, shall not operate to de- ment relocation expense which Compa- prive Company of its rights to oprate ny incur on a time and material basis; and maintain such electrical facilities, provided,if subsequent relocations are until the reasonable cost of relocating required because of the extension of City the same and the loss and expense re- utilities to previously unserved areas. suiting from such relocation are first Company may be required to relocate at paid to Company.In no case,however, its own'expense at any time. shall City be liable to the Company for Subd. 2. Nothing contained in this failure to specifically preserve a right- franchise shall require company to relo- of-way,under Minnesota Statutes,Sec- cate,remove,replace or reconnect at its tion 160.29. own expense its facilities where such re- SECTION 9.Written Acceptance location,removal replacement or recon- Company shall,if it accepts this ordi- nection is for convenience and not of nance and the rights and obligations necessity in the construction of a City hereby granted, file a written accep- utility system or extension thereof.The tante of the rights hereby granted with provisions of this Section 6 requiring the City Clerk within ninety(90)days af- Company to relocate apply only to elec- ter the final passage and any required tric facilities constructed in reliance on publication of this ordinance. a franchise and the Company does not SECTION 10.Provisions of Ordinance waive its rights under an easements, Subd. 1.Every section, provision, or prescriptive right or state or county per- part of this ordinance is declared sepa- mit. rate from every other section,provision, Subd. 3. Any relocation, removal, or or part;and if any section,provision or rearrangement of any Company facili- part shall be held invalid,it shall not af- ties made necessary because of the ex- fect any other section,provision or part. tension into or through City of a federal- ly aided highway project shall be governed by the provisions of Minnesota Statues Section 161.46 as supplemental or amended;and further,it is expressly understood that the right herein granted to Company is a valuable property right and City shall not order Company to re- • move or relocate its facilities without compensation when a public way is va- cated, improved or re-aligned 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 reason- able non-betterment costs of such relo- cation and the loss and expense result- ing therefrom are first paid to Company.