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*Editor's note—Printed herein is Ord. No. 07-2003, effective August 24, 2003. Amendments are indicated by parenthetical history notes following amended provisions. The absence of a history note indicates that the provision remains unchanged from the original. Additions for clarity are indicated by brackets.
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ARTICLE I. ELECTRIC UTILITY FRANCHISE
Sec. 1. Definitions.
For purposes of this ordinance, the following capitalized terms listed in alphabetical order shall have the following meanings:
City. The City of Mound, County of Hennepin, State of Minnesota.
City utility system. Facilities used for providing public utility service owned or operated by city or agency thereof, including sewer, storm sewer, water service, street lighting and traffic signals, but excluding facilities for providing heating, lighting, or other forms of energy.
Commission. The Minnesota Public Utilities Commission, or any successor agency or agencies, including an agency of the federal government, which preempts all or part of the authority to regulate electric retail rates now vested in the Minnesota Public Utilities Commission.
Company. Northern States Power Company, a Minnesota corporation, d/b/a Xcel Energy, its successors and assigns including all successors or assignees that own or operate any part or parts of the electric facilities subject to this franchise.
Electric facilities. Electric transmission and distribution towers, poles, conductor lines, guys, anchors, conduits, fixtures, and necessary appurtenances owned or operated by company for the purpose of providing electric energy for public use.
Non-betterment costs. Costs incurred by company from relocation, removal or rearrangement of electric facilities that do not result in an improvement to the electric facilities.
Notice. A writing served by any party or parties on any other party or parties. Notice to Company shall be mailed to the General Counsel, Legal Services, Suite 3000, 800 Nicollet Mall, Minneapolis, MN 55402. Notice to the city shall be mailed to the City Manager, City of Mound, 5341 Maywood Road, Mound, MN 55364-1627. Any party may change its respective address for the purpose of this ordinance by written notice to the other parties.
Public ground. Land owned or otherwise controlled by the city for park, open space or similar public purpose, which is held for use in common by the public.
Public way. Public right-of-way within the city as defined in Minn. Stat. § 237.163, subd. 3.
Sec. 2. Adoption of franchise.
2.1. Grant of franchise. City hereby grants company, for a period of 20 years from the date this ordinance is passed and approved by the city, the right to transmit and furnish electric energy for light, heat and power 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, company may construct, operate, repair and maintain electric facilities in, on, over, under and across the public ways and public grounds, subject to the provisions of this ordinance. Company may do all reasonable things necessary or customary to accomplish these purposes, subject however, to such reasonable regulations as may be imposed by the city pursuant to ordinance and to the further provisions of this franchise agreement.
2.2. Effective date; written acceptance. This franchise shall be in force and effect from and after the passage of this ordinance and publication as required by law and its acceptance by company. If company does not file a written acceptance with the city within 60 days after the date the City Council adopts this ordinance, or otherwise places the city on notice, before that time, that the company does not accept all terms of this franchise, the City Council by resolution may revoke this ordinance or seek its enforcement in a court of competent jurisdiction.
2.3. Service, rates and area. The service to be provided and the rates to be charged by company for electric service in city are subject to the jurisdiction of the commission. The area within the city in which company may provide electric service is subject to the provisions of Minnesota Statutes, Section 216B.40 [Minn. Stats. § 216B.40].
2.4. Publication expense. The expense of publication of this ordinance shall be paid by company.
2.5. Dispute resolution. 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. 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 30 days of the date of written notice, the parties may jointly select a mediator to facilitate further discussion. The parties will equally share the fees and expenses of this mediator. If a mediator is not used or if the parties are unable to resolve the dispute within 30 days after first meeting with the selected mediator, either party may commence an action in district court to interpret and enforce this franchise or for such other relief as may be permitted by law or equity.
2.6. Continuation of franchise. If the city and company are unable to agree on the terms of a new franchise by the time this franchise expires, this franchise will remain in effect until a new franchise is agreed upon, or until 90 days after the city or company serves written notice to the other party of its intention to allow the franchise to expire, but in no event shall this franchise continue for more than one year after expiration of the 20-year term set forth in section 2.1.
Sec. 3. Location, other regulations.
3.1. Location of facilities. Electric facilities shall be located, constructed, and maintained so as not to interfere with the safety and convenience of ordinary travel along and over public ways and so as not to disrupt normal operation of any city utility system. Electric facilities shall be located on public grounds as determined by the city. Company's construction, reconstruction, operation, repair, maintenance, location and relocation of electric facilities shall be subject to any permit requirements authorized in a separate ordinance and other reasonable regulations of the city, consistent with authority granted the city to manage its public ways and public grounds under state law, to the extent not inconsistent with a specific term of this franchise agreement. Company may abandon underground electric facilities in place, provided, at city's request, company, at its own expense, removes abandoned metal conduits or concrete encased conduit or other facilities interfering with a city improvement project, to the extent such conduit is uncovered as part of the city's improvement project.
3.2. Street openings. Company shall not open or disturb the surface of any public way or public ground for any purpose without first having obtained a permit from the city, if required by a separate ordinance for which the city may impose a reasonable fee, subject to the provisions of section 9. Permit conditions imposed on company shall not be more burdensome than those imposed on other utilities for similar facilities or work. 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 electric facilities and (ii) company gives telephone, e-mail or similar notice to the city before, if reasonably possible, commencement of the emergency repair. Within two business days after commencing the repair, company shall apply for any required permits and pay any required fees.
3.3. Restoration. After undertaking any work requiring the opening of any public way, company shall restore the public way in accordance with Minnesota Rules, part 7819.1100 and applicable city ordinances to the extent consistent with law. Company shall restore the public ground to as good a condition as formerly existed, and shall maintain the surface in good condition for six months thereafter, but shall have no obligation to water any grass or other vegetation thereon. All work shall be completed as promptly as weather permits, and if company shall not promptly perform and complete the work, remove all dirt, rubbish, equipment and material, and put the public ground in the said condition the city shall have, after demand to company to cure and the passage of a reasonable period of time following the demand, but not to exceed five days, the right to make the restoration of the public ground at the expense of company. Company shall pay to the city the cost of such work done for or performed by the city. This remedy shall be in addition to any other remedy available to the city for noncompliance with this section 3.3.
3.4. Performance security. The city hereby waives any requirement, in the normal course of company operations, for company to post a construction performance bond, certificate of insurance, letter of credit or any other form of security or assurance that may be required under a separate existing or future ordinance of the city, of a person or entity obtaining the city's permission to install, replace or maintain facilities in a public way or the public ground. Notwithstanding the foregoing, the city reserves the right to require a performance bond for new installation, replacement, or repairs, when the duration of company's work within a public way is estimated by company to exceed 14 calendar days and company's completion of its work is required in order for the city to proceed with its work for constructing a public improvement to the public way.
3.5. Shared use of poles. 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 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 company because of such use by city.
3.6. Avoid damage to electric facilities. Nothing in this ordinance relieves any person, including company, from liability arising out of the failure to exercise reasonable care to avoid damaging electric facilities or other persons or property while performing any activity.
3.7. Notice of improvements to streets. The city must give company reasonable written notice of plans for improvements to public ways where the city has reason to believe that electric facilities may affect or be affected by the improvement. The notice must contain: (i) the nature and character of the improvements, (ii) the public ways upon which the improvements are to be made, (iii) the extent of the improvements, (iv) the time when the city will start the work, and (v) if more than one public way is involved, the order in which the work is to proceed. The notice must be given to company a sufficient length of time, considering seasonal working conditions, in advance of the actual commencement of the work to permit company to make any additions, alterations or repairs to its electric facilities company deems necessary.
3.8. Mapping information. Company must promptly provide mapping information for any of its underground electric facilities in accordance with Minnesota Rules parts 7819.4000 and 7819.4100.
Sec. 4. Relocations.
4.1. Relocation in public ways. Company shall comply with the requirements of any applicable ordinance of the city relating to relocation of electric facilities in public ways to the extent consistent with Minnesota Rules, part 7819.3100 and applicable law.
4.2. Relocation in public grounds. The city may require company at company's expense 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 to the existing or proposed public use of the public ground. Such relocation shall comply with applicable city ordinances consistent with law.
4.3. Projects with federal funding. Relocation, removal, or rearrangement of any electric 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 [Minn. Stats. § 161.46], as supplemented or amended. 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 is first paid to company. The city is obligated to pay company only for those portions of its relocation costs for which city has received federal funding specifically allocated for relocation costs in the amount requested by the company.
4.4. No waiver. The provisions of section 4 apply only to electric facilities constructed in reliance on a franchise from city and company does not waive its rights under an easement or prescriptive right or state or county permit.
Sec. 5. Tree trimming.
Unless otherwise provided in any permit or other reasonable regulation required by the city under separate ordinance, company may trim all trees and shrubs in the public ways and public grounds of city to the extent company finds necessary to avoid interference with the proper construction, operation, repair and maintenance of any electric facilities installed hereunder, provided that company shall save the city harmless from any liability arising therefrom.
Sec. 6. Indemnification.
6.1. Indemnity of city. Company shall indemnify and hold harmless the city from any and all liability on account of injury to persons or damage to property occasioned by the construction, maintenance, repair, inspection, the issuance of permits, or the operation of the electric facilities located in the public ways and public grounds. The city shall not be indemnified for losses or claims occasioned through its own negligence except for losses or claims arising out of or alleging the city's negligence as to the issuance of permits for, or inspection of, company's plans or work.
6.2. Defense of city. In the event a suit is brought against the city under circumstances where this agreement to indemnify applies, company at its sole cost and expense shall defend the city in such suit if written notice thereof is promptly given to company within a period wherein company is not prejudiced by lack of such notice. If company is required to indemnify and defend, it will thereafter have control of such litigation, but company may not settle such litigation without the consent of the city, which consent shall not be unreasonably withheld. This section is not, as to third parties, a waiver of any defense or immunity otherwise available to the city, and 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. This franchise agreement shall not be interpreted to constitute a waiver by the city of any of its defenses of immunity or limitations on liability under Minnesota Statutes, chapter 466 [Minn. Stats. ch. 466].
Sec. 7. Vacation of public ways.
The city shall give 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 electric 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 the city be liable to company for failure to specifically preserve a right-of-way, under Minnesota Statutes, section 160.29 [Minn. Stats. § 160.29]. In accordance with Minnesota Rules, part 7819.3200, if the city's order directing vacation of the public way does not require relocation of the company's electric facilities, the vacation proceedings shall not be deemed to deprive company of its right to continue to use the right-of-way of the former public way for its electric facilities installed prior to such order of vacation.
Sec. 8. Change in form of government.
Any 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 company, succeed to all of the rights and obligations of the city provided in this ordinance.
Sec. 9. Franchise fee.
9.1. Fee schedule. During the term of the franchise hereby granted, and in lieu of any permit or other fees being imposed on the company for work in or use of the right-of-way, the city may impose on the company a franchise fee by collecting the amounts indicated in a fee schedule set forth in a separate ordinance from each customer in the designated company customer class. The city retains the right to modify the fee rate and fee design for the term of the franchise, subject to fee limits agreed upon below. The parties have agreed that the franchise fee collected by the company and paid to the city in accordance with this section 9 shall not exceed the following amounts, as they may be adjusted for inflation during the term of this franchise:
|
Class |
Amount Per Month |
|
Residential |
3.00 |
|
Sm C & I -- Non-Dem |
5.00 |
|
Sm C & I -- Demand` |
10.00 |
|
Large C & I |
10.00 |
|
Public Street Ltg. |
5.00 |
|
Muni Pumping – N/D |
5.00 |
|
Muni Pumping – Dem |
5.00 |
9.2. Separate ordinance. The franchise fee shall be imposed by a separate ordinance duly adopted by the City Council. Unless otherwise agreed by the company, the ordinance shall not be adopted until at least 60 days after written notice enclosing such proposed ordinance has been served upon company by certified mail. The fee shall not become effective until at least 60 days after written notice enclosing such adopted ordinance has been served upon company by certified mail. Section 2.5 shall constitute the sole remedy for solving disputes between 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.
9.3. Collection of the fee. The franchise fee shall be payable quarterly and shall be based on the amount collected by company during complete billing months during the period for which payment is to be made by imposing a surcharge equal to the designated franchise fee for the applicable customer classification in all customer billings for electric service in each class. The payment shall be due the last business day of the month following the period for which the payment is made. The franchise fee may be changed by ordinance from time to time; however, each change shall meet the same notice requirements and not occur more often than annually and no change shall require a collection from any customer for electric service in excess of the amounts specifically permitted by this section 9. The time and manner of collecting the franchise fee is subject to the approval of the commission. No franchise fee shall be payable by company if company is legally unable to first collect an amount equal to the franchise fee from its customers in each applicable class of customers by imposing a surcharge in company's applicable rates for electric service. Company may pay the city the fee based upon the surcharge billed subject to subsequent reductions to account for uncollectibles, refunds and correction of erroneous billings. Company agrees to make its records available for inspection by the city at reasonable times provided that the city and its designated representative agree in writing not to disclose any information which would indicate the amount paid by any identifiable customer or customers or any other information regarding identified customers. In addition, the company agrees to provide at the time of each payment a statement summarizing how the franchise fee payment was determined, including information showing any adjustments to the total surcharge billed in the period for which the payment is being made to account for any uncollectibles, refunds or error corrections.
9.4. Terms defined.
9.4.1. "Class" shall refer to classes listed in the fee schedule and as defined or determined in company's electric rate book on file with the commission.
9.4.2. "Fee schedule" refers to the schedule in section 9.1 setting forth the various customer classes from which a franchise fee would be collected if a separate ordinance were implemented immediately after the effective date of this franchise agreement. The fee schedule in the separate ordinance may include new customer classes added by the company to its electric tariffs after the effective date of this franchise agreement.
9.5 Equivalent fee requirement. The separate ordinance imposing the fee shall not be effective against company unless it lawfully imposes and the city monthly or more often collects a fee or tax of the same or greater equivalent amount on the receipts from sales of energy within the city by any other energy supplier, provided that, as to such a supplier, the city has the authority to require a franchise fee or to impose a tax. The "same or greater equivalent amount" shall be measured, if practicable, by comparing amounts collected as a franchise fee from each similar customer, or by comparing, as to similar customers the percentage of the annual bill represented by the amount collected for franchise fee purposes. The franchise fee or tax shall be applicable to energy sales for any energy use related to heating, cooling or lighting, or to run machinery and appliances, but shall not apply to energy sales for the purpose of providing fuel for vehicles. If the company specifically consents in writing to a franchise or separate ordinance collecting or failing to collect a fee from another energy supplier in contravention of this section 9.5, the foregoing conditions will be waived to the extent of such written consent. Notwithstanding the foregoing equivalent fee requirement, city retains the final right to determine a franchise fee structure that, after good faith negotiations with company, the city in its sole discretion, is satisfied constitutes a reasonable equivalent fee structure between customers of the company and other energy suppliers.
Ordinance No. 08-2003, duly passed and effective August 24, 2003, implements an electric franchise fee, and is hereby included in its entirety by reference, and is printed after section 12.
Sec. 10. Provision of ordinance.
10.1. Severability. 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; provided, however, that if the city is unable to enforce its franchise fee provisions for any reason the city will be allowed to amend the franchise agreement to impose a franchise fee pursuant to statute. Where a provision of any other city ordinance conflicts with the provisions of this ordinance, the provisions of this ordinance shall prevail.
10.2. Limitation on applicability. This ordinance constitutes a franchise agreement between the city and 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.
Sec. 11. Amendment procedure.
Either party to this franchise agreement may at any time propose that the agreement be amended. 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 company's written consent thereto with the City Clerk after City Council adoption of the amendatory ordinance.
Sec. 12. Previous franchises superseded.
This franchise supersedes and replaces previous franchises granted to the company or its predecessors. Upon company acceptance of this franchise under section 2.2, the previous franchise shall terminate.
(Code 1987, Ord. No. 07-2003, 8-24-2003)
*Editor’s note – Printed herein is Ord. No. 08-2003, effective August 24, 2003. Amendments are indicated by parenthetical history notes following amended provisions. The absence of a history note indicates that the provision remains unchanged from the original. Additions for clarity are indicated by brackets.
ARTICLE II. ELECTRIC FRANCHISE FEES
Sec. 1. Purpose. The City Council has determined that it is in the best interest of the city to impose a franchise fee on those public utility companies that provide natural gas and electric services within the city. Pursuant to Ordinance No. 07-2003, a franchise agreement between the city and Northern States Power Company, d/b/a Xcel Energy, the city has the right to impose a franchise fee on Xcel Energy in an amount and fee design as set forth in Section 9.1 of the Xcel Energy Franchise and in the fee schedule shown as Section 9.
Sec. 2. Franchise fee. A franchise fee is hereby imposed on Xcel Energy under its Electric Franchise in accordance with the schedule attached hereto and made a part of this article, commencing with the Xcel Energy's November 2003, billing month.
Sec. 3. Payment. The said franchise fee shall be payable to the city in accordance with the terms as established by the city.
Sec. 4. Surcharge. The city recognizes that the Minnesota Public Utilities Commission allows the utility company to add a surcharge to customer rates to reimburse such utility company for the cost of the fee and that Xcel Energy will surcharge its customers in the city the amount of the fee.
Sec. 5. Record support for payment. Xcel Energy shall make each payment when due and, if requested by the city, shall provide at the time of each payment a statement summarizing how the franchise fee payment was determined, including information showing any adjustments to the total surcharge billed in the period for which the payment is being made to account for any uncollectibles, refunds or error corrections.
Sec. 6. Enforcement. Any dispute, including enforcement of a default regarding this article will be resolved in accordance with section 2.5 of the franchise agreement.
Sec. 7. Effective date of franchise fee. Notwithstanding the effective date of the ordinance from which this article is derived and notwithstanding any contrary provisions in the franchise, the effective date of the franchise fee collected under section 2 is the later of ten days after the publication or after the sending of written notice enclosing a copy of this article upon Xcel Energy by certified mail. It has been agreed to in advance by Xcel Energy's representatives that Xcel Energy will abide by the provisions of this section 7; provided the fee collection will not commence before the later of the company billing month set forth in subsection (b) of this section or the first billing month commencing 30 days after the foregoing effective date of the franchise fee.
Sec. 8. Sunset clause. The ordinance from which this article is derived shall automatically sunset on December 31, 2010, unless the City Council acts to renew or extend the fee at least six months prior to the sunset date. The City Council may unilaterally renew or extend the fee on the same terms and conditions. Without waiver of any rights under state law, the City Council shall seek agreement from the company if the city intends to change the fee rate or fee design.
Sec. 9. Fee Schedule.
Class Meter Fee
Residential $3.00
Sm C&I – Non-Dem $3.00
Sm C&I – Demand $3.00
Large C & I $3.00
Public Street Ltg. $3.00
Muni Pumping – N/D $3.00
Muni Pumping – Dem $3.00
(Ord. No. 08-2003, § 1, 8-12-03; Ord. 08-2008, 7-6-08; Ord. 15-2008, 12-21-08; Ord. 03-2009, 7-5-09; Ord 05-2009, 9-20-09)
*Editor’s note – Printed herein is Ord. No. 12-2002, effective July 21, 2002. Amendments are indicated by parenthetical history notes following amended provisions. The absence of a history note indicates that the provision remains unchanged from the original. Additions for clarity are indicated by brackets.
ARTICLE III. GAS UTILITY FRANCHISE
Sec. 1. Definitions.
For purposes of this Ordinance, the following capitalized terms listed in alphabetical order shall have the following meanings:
City. The City of Mound, County of Hennepin, State of Minnesota.
City Utility System. Facilities used for providing public utility service owned or operated by City or agency thereof, including sewer, storm sewer, water service, street lighting and traffic signals, but excluding facilities for providing heating, lighting, or other forms of energy.
Commission. The Minnesota Public Utilities Commission, or any successor agency or agencies, including an agency of the federal government, which preempts all or part of the authority to regulate gas retail rates now vested in the Minnesota Public Utilities Commission.
Company. Reliant Energy Minnegasco, a division of Reliant Energy Resources Corporation, a Delaware corporation, its successors and assigns including all successors or assigns that own or operate any part or parts of the Gas Facilities subject to this franchise.
Gas Facilities. Gas transmission and distribution pipes, lines, ducts, fixtures, and all necessary equipment and appurtenances owned or operated by the Company for the purpose of providing gas energy for public or private use.
Gas. Natural gas, manufactured gas, mixture of natural gas and manufactured gas or other forms of gas energy.
Non-Betterment Costs. Costs incurred by Company from relocation, removal or rearrangement of Gas Facilities that do not result in an improvement to the Gas Facilities.
Notice. A writing served by any party or parties on any other party or parties. Notice to Company shall be mailed to Reliant Energy Minnegasco, V.P., Regulatory & Supply Service, 800 LaSalle Avenue, Minneapolis, MN 55402-2006. Notice to the City shall be mailed to the City Manager, City of Mound, 5341 Maywood Road, Mound, MN 55364-1627. Any party may change its respective address for the purpose of this Ordinance by written notice to the other parties.
Public Way. Public right-of-way within the City as defined in Minn. Stat. § 237.162, subd. 3.
Public Ground. Land owned or otherwise controlled by the City for park, open space or similar public purpose, which is held for use in common by the public.
Sec. 2. Adoption of Franchise.
2.1. Grant of Franchise. City hereby grants Company, for a period of 20 years from the date this Ordinance is passed and approved by the City, the right to import, manufacture, distribute and sell gas 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. This right includes the provision of Gas that is (i) manufactured by the Company or its affiliates and delivered by the Company, (ii) purchased and delivered by the Company or (iii) purchased from another source by the retail customer and delivered by the Company. For these purposes, Company may construct, operate, repair and maintain Gas Facilities in, on, over, under and across the Public Ways and Public Grounds, subject to the provisions of this Ordinance. Company may do all reasonable things necessary or customary to accomplish these purposes, subject however, to such lawful regulations as may be adopted by separate ordinance and as currently exist under City Code. The Company shall be notified 60 days in advance of proposed changes to this article. The City and Company shall negotiate in good faith to reach mutually acceptable changes. If the City and Company are unable to agree, disputes will be handled under the terms of Section 2.5 of this Ordinance. If a provision of Section 7.17 conflicts with a provision on the same subject in this Ordinance, this Ordinance will control.
2.2. Effective Date; Written Acceptance. This franchise shall be in force and effect from and after its passage of this Ordinance and publication as required by law and its acceptance by Company. If Company does not file a written acceptance with the City within 90 Days after the date the City Council adopts this Ordinance, or otherwise places the City on written notice, at any time, that the Company does not accept all terms of this franchise, the City Council by resolution may either repeal this ordinance or seek its enforcement in a court of competent jurisdiction.
2.3. Service and Gas Rates. The service to be provided and the rates to be charged by Company for gas service in City are subject to the jurisdiction of the Commission
2.4. Publication Expense. The expense of publication of this Ordinance shall be paid by Company.
2.5. Dispute Resolution. 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. 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 30 days of the written notice, the parties may jointly select a mediator to facilitate further discussion. The parties will equally share the fees and expenses of this mediator. If a mediator is not used or if the parties are unable to resolve the dispute within 30 days after first meeting with the selected mediator, either party may commence an action in District Court to interpret and enforce this franchise or for such other relief permitted by law.
2.6. Continuation of Franchise. If the City and the Company are unable to agree on the terms of a new franchise by the time this franchise expires, this franchise will remain in effect until a new franchise is agreed upon, or until 90 days after the City or the Company serves written Notice to the other party of its intention to allow the franchise to expire.
Sec. 3. Location, other regulations.
3.1. Location of Facilities. Subject to regulation under Section 7.17, Gas Facilities in the Public Way shall be located, constructed, and maintained so as not to disrupt normal operation of any City Utility System. Gas Facilities may be located on Public Grounds as determined by the City.
3.2. Restoration of Public Ways and Public Ground. Restoration of the Public Way shall be subject to Section 7.17. After completing work requiring the opening of Public Ground, the Company shall restore the Public Ground to as good a condition as formerly existed, and shall maintain the surface in good condition for six (6) months thereafter. All work shall be completed as promptly as weather permits. If Company shall not promptly perform and complete the work, remove all dirt, rubbish, equipment and material, and put the Public Ground in the said condition and after demand to Company to cure, City shall, after passage of a reasonable period of time following the demand, but not to exceed five days, have the right to make the restoration of the Public Ground at the expense of Company. Company shall pay to the City the cost of such work done for or performed by the City. This remedy shall be in addition to any other remedy available to the City for noncompliance with this Section.
3.3. Waiver of Performance Security. The City hereby waives any requirement for Company to post a construction performance bond, certificate of insurance, letter of credit or any other form of security or assurance that may be required under Section 7.17 currently or in the future. The City reserves all other rights under this Article to enforce Company performance requirements for work in the Public Way or Public Ground.
3.4. Avoid Damage to Gas Facilities. Nothing in this Ordinance relieves any person from liability arising out of the failure to exercise reasonable care to avoid damaging Gas Facilities while performing any activity.
Sec. 4. Relocations.
4.1. Relocation of Gas Facilities. Relocation of Gas Facilities in Public Ways shall be subject to this Article. City may require Company at Company’s expense to relocate or remove its Gas Facilities from Public Grounds upon a finding by City that the Gas Facilities have become or will become a substantial impairment to the existing or proposed public use of the Grounds. Relocation Gas Facilities in Public Ground shall comply with applicable City ordinances consistent with law.
4.2. Projects with Federal Funding. Relocation, removal, or rearrangement of any Company Gas 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. City shall not order Company to remove or relocate its Gas 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 agreement is made that the reasonable Non-Betterment Costs of such relocation and the loss and expense resulting therefrom will be paid to Company when available to the City. The City need not pay those portions of such for which reimbursement to it is not available.
4.3. No Waiver. The provisions of Section 4 apply only to Gas Facilities constructed in reliance on a permit or franchise from City and Company does not waive its rights under an easement or prescriptive right or State or County permit.
Sec. 5. Change in form of government.
Any 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 Company, succeed to all of the rights and obligations of the City provided in this Ordinance.
Sec. 6. Franchise fee.
6.1. Reservation of rights. The City reserves all rights under Minn. Stat. § 216B.36, to require a franchise fee at any time during the term of this franchise. If the City elects to require a franchise fee it shall notify Company and negotiate in good faith to reach a mutually acceptable fee agreement, which shall be set forth in a separate ordinance and not adopted until at least 60 days after Notice enclosing such proposed ordinance has been served upon the Company by certified mail. If the City and Company are unable to agree on a franchise fee or on any terms related thereto, each hereby consents to the jurisdiction of State District Court, Hennepin County, to construe their respective rights under the law, subject to all rights of appeal.
Sec. 7. Limitation of applicability; no waiver.
This Ordinance constitutes a franchise agreement between the City and its successors and the Company and its successors and permitted assigns, as the only parties. 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. This franchise agreement shall not be interpreted to constitute a waiver by the City of any of its defenses of immunity or limitations on liability under Minnesota Statutes, Chapter 466.
Sec. 8. Amendment procedure.
Either party to this franchise agreement may at any time propose that the agreement be amended. 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 Company’s written consent thereto with the City Clerk within 60 days after the effective date of the amendatory ordinance.
Sec. 9. Previous franchise superseded.
This franchise supersedes and replaces previous franchises granted to the Company or its predecessors. Upon Company acceptance of this franchise under Section 2.2, the previous franchise shall terminate.
(Code 1987, 625.00, Ord 12-2002, 7-21-02)
*Editor’s note – Printed herein is Ord. No. 05-2003, effective March 8, 2003. Amendments are indicated by parenthetical history notes following amended provisions. The absence of a history note indicates that the provision remains unchanged from the original. Additions for clarity are indicated by brackets.
ARTICLE IV. GAS FRANCHISE FEES
Sec. 1. Purpose. The Mound City Council has determined that it is in the best interest of the City to impose a franchise fee on those public utility companies that provide gas and electric service within the City of Mound. Pursuant to City Ordinance No.12-2002, a Franchise Agreement between the City and CenterPoint Energy Minnegasco, the City has reserved its right to impose a franchise fee on CenterPoint Energy Minnegasco in amount and fee design as agreed. The parties have agreed on a fee as set forth in the fee schedule shown as Section 9.
Sec. 2. Franchise Fee Statement. A franchise fee is hereby imposed on CenterPoint Energy Minnegasco under its Gas Franchise in accordance with the schedule attached hereto and made a part of this ordinance, commencing with the CenterPoint Energy Minnegasco’s August billing month. The City reserves the right to review the fee for purposes of termination, continuation or modification. The City further retains its rights under Minnesota law during the term of the underlying franchise.
Sec. 3. Payment. The said franchise fee shall be payable to the City in accordance with the terms set forth in Section 10.
Sec. 4. Surcharge. The City recognizes that the Minnesota Public Utilities Commission allows the utility company to add a surcharge to customer rates to reimburse such utility company for the cost of the fee and that CenterPoint Energy Minnegasco will surcharge its customers in the City the amount of the fee.
Sec. 5. Record Support for Payment. CenterPoint Energy Minnegasco shall make each payment when due and, if requested by the City, shall furnish a statement of gas usage by each customer class at the time of each payment for the period for the payment was made. CenterPoint Energy Minnegasco shall permit the City’s designated representative reasonable access to the company’s records for the purpose of verifying such statements.
Sec. 6. Enforcement. Any dispute, including enforcement of a default regarding this ordinance will be resolved in accordance with Section 2.5 of the Franchise Agreement.
Sec. 7. Effective Date of Franchise Fee. Notwithstanding the effective date of this ordinance and notwithstanding any contrary provisions in the Franchise, the effective date of the fee collected under Section 2 of this ordinance is the later of ten (10) days after the publication or after the sending of written notice enclosing a copy of this adopted ordinance upon CenterPoint Energy Minnegasco by certified mail. It has been agreed to in advance by CenterPoint Energy Minnegasco’s representatives that CenterPoint Energy Minnegasco will abide by the provisions of this Section 7.
Sec. 8. Sunset Clause.
The ordinance from which this article is derived shall automatically sunset on July 1, 2010, unless the City Council acts to renew or extend the fee at least six (6) months prior to the sunset date. The City Council may unilaterally renew or extend the fee on the same terms and conditions. Without waiver of any rights under Minnesota law, the City Council shall seek agreement from Company if the City intends to change the fee rate or fee design.
Sec. 9. Fee Schedule.
Class Monthly Meter Fee
Residential $3.00
Comm. Firm Non-Demand $3.00
Comm. Firm Demand $3.00
Small Interruptible $3.00
Large Interruptible $3.00
Firm Transportation $3.00
Interruptible Transportation $3.00
Sec. 10. Collection of the Fee.
The franchise fee shall be payable monthly and shall be based on the complete billing months during the period for which payment is to be made. The payment shall be due the last business day of the month following the period for which the payment is made. The fee may be changed by ordinance from time to time, however, each change shall meet the same notice requirements and may not occur more often than annually. Such fee shall not exceed any amount, which the Company may legally charge to its customers prior to payment to the City by imposing a surcharge equivalent to such fee in its rates for electric service. The Company may pay the City the fee based upon the surcharge billed subject to subsequent reductions to account for uncollectibles or customer refunds. The time and manner of collecting the franchise fee is subject to approval of the Public Utilities Commission, which the Company agrees to use best efforts to obtain. The Company agrees to make its records available for inspection by the City at reasonable times, provided that the City and its designated representative agree in writing not to disclose any information that is not public data which would indicate the amount paid by any identifiable customer or any other information regarding specific customers.
Code 1987, Ord. 05-2003, 8-03-03; Ord. 09-2008, 7-06-08; Ord. 06-2009, 9-20-09)