HomeMy WebLinkAbout0940C Ord (Utility System)
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GAS FRANCHISE ORDINANCE
ORDINANCE NO. 940C
CITY OF STILLWATER, WASHINGTON COUNTY, MINNESOTA
AN ORDINANCE GRANTING TO NORTHERN STATES POWER COMPANY, A
MINNESOTA CORPORATION, D/B/A XCEL ENERGY ITS SUCCESSORS AND
ASSIGNS, PERMISSION TO ERECT A GAS DISTRIBUTION SYSTEM FOR THE
PURPOSES OF CONSTRUCTING, OPERATING, REPAIRING AND MAINTAINING
IN THE CITY OF STILLWATER, MINNESOTA, THE NECESSARY GAS PIPES,
MAINS AND APPURTENANCES FOR THE TRANSMISSION OR DISTRIBUTION OF
GAS TO THE CITY AND ITS INHABITANTS AND OTHERS AND TRANSMITTING
GAS INTO AND THROUGH THE CITY AND TO USE THE PUBLIC WAYS AND
PUBLIC GROUNDS OF THE CITY FOR SUCH PURPOSES.
THE CITY COUNCIL OF THE CITY OF STILLWATER, WASHINTON COUNTY,
MINNESOTA, ORDAINS:
SECTION 1. DEFINITIONS,
For purposes of this Ordinance, the following capitalized terms listed in alphabetical order
shall have the following meanings:
City. The City of Stillwater, County of Washington, State of Minnesota.
City Utility System. Facilities used for providing non-energy related public utility service
owned or operated by City or agency thereof, including sewer and water service, 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. Northern States Power Company, a Minnesota corporation, d/b/a Xcel Energy,
its successors and assigns.
Gas. "Gas" as used herein shall be held to include natural gas, manufactured gas, or other
form of gaseous energy.
Gas Facilities. Pipes, mains, regulators, and other facilities owned or operated by Company
for the purpose of providing gas service for public use.
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, 800 NicolletMall, Suite 3000,
Minneapolis, MN 55402. Notice to the City shall be mailed to the City Clerk, Stillwater City Hall, 216
North Fourth Street, Stillwater, MN 55082. Either party may change its respective address for the
purpose of this Ordinance by written notice to the other party.
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Public Ground. Land owned by the City for park, open space or similar purpose, which is
held for use in common by the public.
Public Way. Any street, alley, walkway or other public right-of-way within the City.
SECTION 2. ADOPTION OF FRANCHISE.
2.1 Grant of Franchise. City hereby grants Company, term from the effective date hereof
and expiring June 30, 2015, the right to transmit and furnish Gas energy for light, heat, power and
other purposes for public and private use within and through the limits of the City as its boundaries
now exist or as they may be extended in the future. For these purposes, Company may construct,
operate, repair and maintain Gas Facilities in, on, over, under and across the Public Ways and Public
Grounds of City, 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 agreement shall be in force and
effect from and after passage of this Ordinance, its acceptance by Company, and its publication as
required by law. The City by Council resolution may revoke this franchise agreement if Company does
not file a written acceptance with the City within 90 days after publication.
2.3 Service and 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 will be paid by
City and reimbursed to City 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
prompdy 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 joindy 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 pennitted by law or equity for breach of contract, or either
party may take any other action pennitted by law.
SECTION 3, LOCATION, OTHER REGULATIONS.
3.1 Location of Facilities. Gas 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 previously installed therein. Gas Facilities
shall be located on Public Grounds as determined by the City. Company's construction,
reconstruction, operation, repair, maintenance and location of Gas Facilities shall be subject to pennits
if required by separate ordinance and to other reasonable regulations of the City to the extent not
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inconsistent with the terms of this franchise agreement. Company may abandon underground gas
facilities in place, provided, at City's request, Company will remove abandoned metal pipe interfering
with a City improvement project, but only to the extent such metal pipe is uncovered by excavation as
part of the City's improvement project.
3.2 Field Locations. Company shall provide field locations for its underground Gas
Facilities within City consistent with the requirements of Minnesota Statutes, Chapter 216D.
3.3 Street Openings. Company shall not open or disturb 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. 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 any Public Way or Public Ground without permission from
the City where an emergency exists requiring the immediate repair of Gas Facilities. In such event
Company shall notify the City by telephone to the office designated by the City as soon as practicable.
Not later than the second working day thereafter, Company shall obtain any required permits and pay
any required fees.
3.4 Restoration. After undertaking any work requiring the opening of any Public Way or
Public Ground, Company shall restore the same, including paving and its foundation, to as good a
condition as formerly existed, and shall maintain any paved surface in good condition for two years
thereafter. The 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 Way or 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 at the expense of Company. Company shall pay to the City the
cost of such work done for or performed by the City. lbis remedy shall be in addition to any other
remedy available to the City for noncompliance with this Section 3.4, but 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 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, provided that upon any failure of Company to comply with the
requirements of this Section 3.4 and not remedy the noncompliance within 30 days after Notice from
the City, Company agrees to accept an amendment proposed and adopted pursuant to Section 11
hereof, which amends this Section 3.4 by removing the waiver by the City of one or more of the above
requirements.
3.5 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.
3.6 Notice of Improvements. The City must give Company reasonable notice of plans for
improvements to Public Ways or Public Ground where the City has reason to believe that Gas
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 and Public Grounds upon which the
improvements are to be made, (ill) the extent of the improvements, (iv) the time when the City will
start the work, and (v) if more than one Public Way or Public Ground is involved, the order in which
the work is to proceed. The notice must be given to Company a sufficient length of time in advance of
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the actual comtnencement of the work to permit Company to make any necessary additions, alterations
or repairs to its Gas Facilities.
SECTION 4, RELOCATIONS.
4.1 Relocation of Gas Facilities in Public Ways. If the City determines to vacate a Public
Way for a City improvement project, or at City's cost to grade, regrade, or change the line of any Public
Way, or construct or reconstruct any City Utility System in any Public Way, it may order Company to
relocate its Gas Facilities located therein if relocation is reasonably necessary to accomplish the City's
proposed public improvement. Except as provided in Section 4.3, Company shall relocate its Gas
Facilities at its own expense. The City shall give Company reasonable notice of plans to vacate for a
City improvement project, or to grade, regrade, or change the line of any Public Way or to construct or
reconstruct any City Utility System. If a relocation is ordered within five years of a prior relocation of
the same Gas Facilities, which was made at Company expense, the City shall reimburse Company for
Non-Betterment Costs on a time and material basis, provided that if a subsequent relocation is requited
because of the extension of a City Utility System to a previously unserved area, Company may be
requited to make the subsequent relocation at its expense. Nothing in this Ordinance requites
Company to relocate, remove, replace or reconstruct at its own expense its Gas Facilities where such
relocation, removal, replacement or reconstruction is solely for the convenience of the City and is not
reasonably necessary for the construction or reconstruction of a Public Way or City Utility System or
other City improvement.
4.2 Relocation of Gas Facilities in Public Ground. City may requite Company at
Company's expense to relocate or remove its Gas Facilities from Public Ground 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 Public Ground.
4.3 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. It is understood that the right herein granted to Company is a
valuable right. 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 the
reasonable non-betterment Costs of such relocation and the loss and expense resulting therefrom are
first paid to Company, but the City need not pay those portions of such for which reimbursement to it
is not available.
4.4 No Waiver. The provisions of this franchise apply only to facilities constructed in
reliance on a franchise from the City and shall not be construed to waive or modify any rights obtained
by Company for installations within a Company right-of-way acquited by easement or prescriptive
right before the applicable Public Way or Public Ground was established, or Company's rights under
state or county permit.
SECTION 5. TREE TRIMMING,
Company is also granted the permission and authority to trim all shrubs and trees, including
roots, in the Public Ways of City to the extent Company finds necessary to avoid interference with the
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proper construction, operation, repair and maintenance of Gas Facilities, provided that Company shall
save City harmless from any liability in the premises.
SECTION 6, INDEMNIFICATION.
6.1 Indemnity of City. Company shall indemnify, keep and hold the 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, inspection, the issuance of pennits, or the operation of the Gas
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 pennits for, or inspection of, Company's plans or work. The
City shall not be indemnified if the injury or damage results from the performance in a proper manner
of acts reasonably deemed hazardous by Company, and such performance is nevertheless ordered or
directed by City after notice of Company's determination.
6.2 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 prompdy 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. TIlls 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 entided to assert in any action every defense or
immunity that the City could assert in its own behalf.
SECTION 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 for a City improvement project, the vacation of any Public Way,
after the installation of Gas Facilities, shall not operate to deprive Company of its rights to operate and
maintain such Gas 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
Company for failure to specifically preserve a right-of-way under Minnesota Statutes, Section 160.29.
SECTION 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.
SECTION 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, 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 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:
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Class
Amount Per Month
Residential
Commercial Firm Non-Demand
Commercial Firm Demand
Small Interruptible
Large Interruptible
Firm Transportation
Interruptible Transportation
$1.00
$5.00
$5.00
$5.00
$5.00
$5.00
$5.00
9.2 Separate Ordinance. The franchise fee shall be imposed by a 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 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. A separate ordinance which imposes a lesser franchise fee on the
residential class of customers than the maximum amount set forth in Section 8.1 above shall not be
effective against Company unless the fee imposed on each other customer classification is reduced
proportionately in the same or greater amount per class as the reduction represented by the lesser fee
on the residential class.
9.3 Terms Defined.
9.3.1 "Class" shall refer to classes listed in the Fee Schedule and as defined or
determined in Company's gas rate book on file with the Commission.
9.3.2 "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 gas tariffs after the
effective date of this franchise agreement.
9.3.3 Therm shall be a unit of gas providing 100,000 Btu of heat content adjusted for
billing purposes under the rate schedules of Company on file with the
Commission.
9.4 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 gas 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
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requirements and not occur more often than annually and no change shall require a collection from
any customer for gas service in excess of the amounts specifically pennitted 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 gas 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.
9.5 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.
9.6 Fee Adjustment. During the term of this franchise agreement, the City may determine
that it desires Company to collect a franchise fee in an amount greater than that pennitted by Section
9.1. If so, the City may give Company Notice to amend this franchise agreement to authorize
collection of a franchise fee by separate ordinance in an amount and upon such terms and
conditions as Company at that time is willing to incorporate in its gas franchise agreements with
other cities of the second, third, or fourth class in the seven-county metropolitan area. Upon receipt
of such Notice, Company shall negotiate in good faith with City to so amend this franchise
agreement. If agreement is not reached within 30 days after said Notice, the City may upon 30 days
prior written Notice, enclosing a proposed amendment based upon the language Company has
agreed to in a gas franchise agreement with at least two other of such cities initially adopted after the
effective date of this franchise agreement demand that Company consent to the City's proposed
amendment. The Company shall respond to the City within said 3D-day period that it will
immediately agree to accept the City's proposed amendment to this franchise agreement or send the
City an amendment that Company will accept and which Company believes to be a good faith
attempt to respond to the City's needs. If the City and Company are unable to agree on the terms
and conditions of the amendment within 30 days after Company's response to the City, either party
may demand that the issue be resolved pursuant to Section 2.5 of the Franchise Ordinance. If the
result is a proceeding in District Court, both parties agree to be bound by the District Court's
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selection of one of the proposed amendments as best meeting, in the Court's opinion, the needs of
both parties.
SECTION 10. PROVISIONS 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. 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 anyone or more of the terms hereof,
or otherwise give rise to any cause of action in any person not a party hereto.
SECTION 11. AMENDMENT PROCEDURE.
Either party to this franchise agreement may at any time propose that the agreement be
amended to address a subject of concern and the other party will consider whether it agrees that the
amendment is mutually appropriate. If an amendment is agreed upon, 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 90 days after the date of final passage by the City
of the amendatory ordinance.
SECTION 12. PREVIOUS FRANCHISES SUPERSEDED.
This franchise supersedes any previous Gas franchise granted to Company or its predecessor.
Passed and .pprove& tJd~ cR)
,2003.
Attest:
MCl'A'/ \+ illud-
Diane F. Ward, City Clerk
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AFFIDA VIT OF PUBLICATION
Stillw-ater Gazette
1931 Curve Crest Blvd.
Stillwater, MN 55082
(651) 439-3130 fax: (651) 439-4713
10/31/03
State of Minnesota}
ss.
COWlty of Washington}
The Wldersigned, being duly sworn. on oath, says that slhe is the Publisher or authorized agent and
employee of the Publisher known as the Stillwater Evening Gazette, and has full knowledge of the facts
which are stated (A) The newspaper has complied with aU of the requirements constituting
qualification as a qualified newspaper, as provided by Minnesota State Statute 331A02, 331A07 and
other applicable laM as amended. Printed below is a copy of the lowercase Alphabet, from A to Z, both
inclusive, which is hereby ackno ed as being the size and kind type used in composition and
publication 1 the f tice. ab fghij nopqrstuvwxyz
Subscribed and sworn t. 0 or affirmed to me ..k.
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on this I day of' .
,2003.
'"
City of Stillwater
216 4th St N.
Stillwater, MN 55082
Invoice #; ??oo2799
Terms: Net 30
Inches
105 Stillwater
Total
$423.15
Price
Description
City of Stillwater Ordinance No.
94OC, Published 10/30
$4.03
$423.15
Sub Total
$423.15
Payment
$0.00
Maximum rate per column inch under
Minnesota Law: $16.90 per 12.pica column
Balance Due
$423.15
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