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HomeMy WebLinkAbout1074 Ord (Gas Franchise Permission Xcel) GAS FRANCHISE ORDINANCE ORDINANCE NO. 1074 CITY OF STILLWATER,WASHINGTON COUNTY,MINNESOTA AN ORDINANCE GRANTING TO NORTHERN STATES POWER COMPANY,A MINNESOTA CORPORATION,DB/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 GROUNDS AND PUBLIC WAYS OF THE CITY FOR SUCH PURPOSES. THE CITY COUNCIL OF THE CITY OF STILLWATER, WASHINGTON COUNTY, MINNESOTA,ORDAINS: SECTION 1. DEFINITIONS. For purposes of this Ordinance, the following capitalized terms listed in alphabetical order shall have the following meanings: 1.1 City. The City of Stillwater,County of Washington, State of Minnesota. 1.2 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. 1.3 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. 1.4 Company. Northern States Power Company, a Minnesota corporation, d/b/a Xcel Energy, its successors and assigns. 1.5 Gas. "Gas" as used herein shall be held to include natural gas, manufactured gas, or other form of gaseous energy. 1.6 Gas Facilities. Pipes, mains, regulators, and other facilities owned or operated by Company for the purpose of providing gas service for public use. 1.7 Notice. A written notice served by one party on the other party referencing one or more provisions of this Ordinance. Notice to Company shall be mailed to the General Counsel, 414 Nicollet Mall, 5th Floor, Minneapolis, MN 55401. Notice to the City shall be mailed to the City Administrator, City Hall,216 Fourth Street North, Stillwater,MN 55082. Either party may change its respective address for the purpose of this Ordinance by written notice to the other party. 1.8 Public Ground. Land owned by the City for park,open space or similar purpose,which is held for use in common by the public. 1 1.9 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, for a period of 20 years from the date passed and approved by the City, 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 Grounds and Public Ways 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 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 as may be permitted by law or equity for breach of contract,or either party may take any other action permitted 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 permits, if required by separate ordinance,and to other reasonable regulations of the City to the extent not 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. 2 3.3 Street Openings. Company shall not open or disturb any Public Ground or Public Way 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 Ground or Public Way 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 Ground or Public Way, 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 one year 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 Ground or Public Way 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. This 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. 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 Grounds or Public Ways 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 Grounds and 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 Ground or 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 in advance of the actual commencement 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 required because of the extension of a City Utility System to a previously unserved area, Company may be required to make the subsequent relocation at its 3 expense. Nothing in this Ordinance requires 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 require 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. City shall not order Company to remove or relocate its Gas Facilities when a Public Way is vacated, improved or realigned for a right-of-way project or any other project 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 are 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, which allocated funding the City shall specifically request. Relocation, removal or rearrangement of any Company Gas Facilities made necessary because 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 rights herein granted to Company are valuable rights. 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 acquired by easement or prescriptive right before the applicable Public Ground or Public Way 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 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 permits, or the operation of the Gas Facilities located in the Public Grounds and Public Ways. 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. 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 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 4 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. 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. 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 90 days after written notice enclosing such proposed ordinance has been served upon Company by certified mail. The fee shall not become effective until the beginning of a Company billing month at least 90 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 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 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 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 5 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. 9.4 Terms Defined. 9.4.1 "Customer 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. 9.4.2 "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 gas tariffs after the effective date of this franchise agreement. 9.4.3 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. 9.5 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. 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 any one or more of the terms hereof, or otherwise give rise to any cause of action in any person not a party hereto. 6 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 approved: February 17,2015 �,- - Ted Koz owski,Mayor Att-st: ,' /. /1/1241,e), Nancy Ma is ,Acting City Clerk Date Published: Friday,February 20,2015 7 AFFIDAVIT OF PUBLICATION City of Stillwater (Official Publication) STATE OF MINNESOTA )ss COUNTY OF WASHINGTON GAS FRANCHISE ORDINANCE ) ORDINANCE NO.1074 CITY OF STILLWATER,WASHINGTON COUNTY,MINNESOTA Charlene Vold being duly sworn on an oath, AN ORDINANCE GRANTING TO NORTHERN STATES POWER states or affirms that they are the Authorized COMPANY,A MINNESOTA CORPORATION,D/B/A XCEL ENERGY, Agent of the newspaper(s)known as: ITS SUCCESSORS AND ASSIGNS,PERMISSION TO ERECT A GAS DISTRIBUTION SYSTEM FOR THE PURPOSES OF Stillwater Gazette CONSTRUCTING,OPERATING,REPAIRING AND MAINTAINING IN THE CITY OF STILLWATER,MINNESOTA,THE NECESSARY GAS PIPES,MAINS AND APPURTENANCES FOR THE TRANSMISSION and has full knowledge of the facts stated OR DISTRIBUTION OF GAS TO THE CITY AND ITS INHABITANTS below: AND OTHERS AND TRANSMITTING GAS INTO AND THROUGH compliedTHE CITY AND TO USE THE PUBLIC GROUNDS AND (A)The newspaper has with all of PUBLIC WAYS OF THE CITY FOR SUCH PURPOSES. the requirements constituting qualifica- tion as a qualified newspaper as provided THE CITY COUNCIL OF THE CITY OF STILLWATER, WASHINGTON COUNTY,MINNESOTA,ORDAINS: by Minn. Stat. §331A.02, §331A.07, and other applicable laws as amended. SECTION 1.DEFINITIONS. (B)This Public Notice was printed and pub- For purposes of this Ordinance, the following capitalized terms listed in lished in said newspaper(s) for 1 succes- alphabetical order shall have the following meanings: sive issues; the first insertion being on 1.1 City.The City of Stillwater,County of Washington,State of Minnesota. 02/20/2015 and the last insertion being on 1 2 City Utility System. Facilities used for providing non-energy related 02/20/2015. public utility service owned or operated by City or agency thereof,includ- ing sewer and water service,but excluding facilities for providing heating, lighting or other forms of energy. 1.3 Commission.The Minnesota Public Utilities Commission,or any suc- cessor agency or agencies,including an agency of the federal government, By: �� which preempts all,or part of the authority to regulate Gas retail rates now Authorized Agent vested in the Minnesota Public Utilities Commission. 1.4 Company.Northern States Power Company,a Minnesota corporation, Subscribed and sworn to or affirmed before d/b/a Xcel Energy,its successors and assigns. me on 02/20/2015. 1.5 Gas."Gas"as used herein shall be held to include natural gas,manu- factured gas,or other form of gaseous energy. 1.6 Gas Facilities.Pipes,mains,regulators,and other facilities owned or op- erated by Company for the purpose of providing gas service for public use. J �1J 11.. 1.7 Notice.A written notice served by one party on the other party referenc- Notary Public ing one or more provisions of this Ordinance.Notice to Company shall be mailed to the General Counsel,414 Nicollet Mall,5th Floor, Minneapolis, MN 55401. Notice to the City shall be mailed to the City Administrator, City Hall,216 Fourth Street North,Stillwater,MN 55082.Either party may change its respective address for the purpose of this Ordinance by written vvv vvvvvwirvvvvwvvvvvvvvvvvvvI.4 notice to the other party. �rr,> MARIEDARLENE ti iMACPHERSON• 1.8 Public Ground.Land owned by the City for park,open space or similar '.411:.; J Piia� purpose,which is held for use in common by the public. Y i. Dykes $1.2019 1.9 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,for a period of 20 years from the date passed and approved by the City,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 Grounds and Public Ways 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. Rate Information: 2.3 Service and Rates. The service to be provided and the rates to be Lowest classified ratepaid bycommercial users charged by Company for gas service in City are subject to the jurisdiction (1) of the Commission. for comparable space: $40.00 per column inch 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 promptly Ad ID 352302 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 ity System to a previously unserved area, Company may be required to may jointly select a mediator to facilitate further discussion.The parties will make the subsequent relocation at its expense.Nothing in this Ordinance equally share the fees and expenses of this mediator.If a mediator is not requires Company to relocate, remove, replace or reconstruct at its own used or if the parties are unable to resolve the dispute within 30 days after expense its Gas Facilities where such relocation,removal,replacement or first meeting with the selected mediator, either party may commence an reconstruction is solely for the convenience of the City and is not reason- action in District Court to interpret and enforce this franchise or for such ably necessary for the construction or reconstruction of a Public Way or other relief as may be permitted by law or equity for breach of contract,or City Utility System or other City improvement. either party may take any other action permitted by law. 4.2 Relocation of Gas Facilities in Public Ground.City may require Com- SECTION 3.LOCATION.OTHER REGULATIONS. pany 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 3.1 Location of Facilities.Gas Facilities shall be located,constructed and or will become a substantial impairment to the existing or proposed public maintained so as not to interfere with the safety and convenience of or- use of the Public Ground. dinary travel along and over Public Ways and so as not to disrupt nor- mal operation of any City Utility System previously installed therein. Gas 4.3 Projects with Federal Funding.City shall not order Company to remove Facilities shall be located on Public Grounds as determined by the City. or relocate its Gas Facilities when a Public Way is vacated, improved or Company's construction, reconstruction, operation, repair, maintenance realigned for a right-of-way project or any other project which is financially and location of Gas Facilities shall be subject to permits, if required by subsidized in whole or in part by the Federal Government or any agency separate ordinance,and to other reasonable regulations of the City to the thereof,unless the reasonable non-betterment costs of such relocation are extent not inconsistent with the terms of this franchise agreement.Corn- first paid to Company.The City is obligated to pay Company only for those pany may abandon underground gas facilities in place,provided,at City's portions of its relocation costs for which City has received federal funding request,Company will remove abandoned metal pipe interfering with a City specifically allocated for relocation costs in the amount requested by the improvement project,but only to the extent such metal pipe is uncovered Company,which allocated funding the City shall specifically request.Re- by excavation as part of the City's improvement project. location, removal or rearrangement of any Company Gas Facilities made necessary because of a federally-aided highway project shall be governed 3.2 Field Locations. Company shall provide field locations for its under- by the provisions of Minnesota Statutes,Section 161.46,as supplemented ground Gas Facilities within City consistent with the requirements of Min- or amended. It is understood that the rights herein granted to Company nesota Statutes,Chapter 216D. are valuable rights. 3.3 Street Openings.Company shall not open or disturb any Public Ground con- or Public Way for any purpose without first having obtained a permit from structed NWaiver.rTeliance provisions of this franchise apply only to facilities cons the City,if required by a separate ordinance,for which the City may impose towaivein rmodify on a rightshobtainede from bythe Company and fsor installations not be construed a reasonable fee. Permit conditions imposed on Company shall not be a n modifyanyi eds meatorprescriptive for t within a Company right-of-way acquired by easement or right before more burdensome than those imposed on other utilities for similar facilities the applicable Public Ground or Public Way was established,or Company's or work. Company may,however,open and disturb any Public Ground or rights under state or county permit. Public Way without permission from the City where an emergency exists re- quiring the immediate repair of Gas Facilities.In such event Company shall SECTION 5.TREE TRIMMING. notify the City by telephone to the office designated by the City as soon Company is also granted the permission and authority to trim all shrubs as practicable.Not later than the second working day thereafter,Company shall obtain any required permits and pay any required fees. and trees,including roots,in the Public Ways of City to the extent Company finds necessary to avoid interference with the proper construction,opera- 3.4 Restoration.After undertaking any work requiring the opening of any tion,repair and maintenance of Gas Facilities,provided that Company shall Public Ground or Public Way,Company shall restore the same,including save City harmless from any liability in the premises. paving and its foundation,to as good a condition as formerly existed,and SECTION 6.INDEMNIFICATION. shall maintain any paved surface in good condition for one year thereafter. The work shall be completed as promptly as weather permits,and if Com- 6.1 Indemnity of City.Company shall indemnify,keep and hold the City free pany shall not promptly perform and complete the work, remove all dirt, and harmless from any and all liability on account of injury to persons or rubbish,equipment and material,and put the Public Ground or Public Way damage to property occasioned by the construction,maintenance,repair, in the said condition,the City shall have,after demand to Company to cure inspection,the issuance of permits,or the operation of the Gas Facilities and the passage of a reasonable period of time following the demand,but located in the Public Grounds and Public Ways.The City shall not be in- not to exceed five days,the right to make the restoration at the expense demnified for losses or claims occasioned through its own negligence ex- of Company.Company shall pay to the City the cost of such work done cept for losses or claims arising out of or alleging the City's negligence,as for or performed by the City.This remedy shall be in addition to any other to the issuance of permits for,or inspection of,Company's plans or work. remedy available to the City for noncompliance with this Section 3.4,but The City shall not be indemnified if the injury or damage results from the the City hereby waives any requirement for Company to post a construe- performance in a proper manner of acts reasonably deemed hazardous by tion performance bond,certificate of insurance,letter of credit or any other Company,and such performance is nevertheless ordered or directed by form of security or assurance that may be required,under a separate exist- City after notice of Company's determination. ing 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. 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 3.5 Avoid Damage to Gas Facilities.Nothing in this Ordinance relieves any sole cost and expense shall defend the City in such suit if written notice person from liability arising out of the failure to exercise reasonable care to thereof is promptly given to Company within a period wherein Company is avoid damaging Gas Facilities while performing any activity. not prejudiced by lack of such notice.If Company is required to indemnify 3.6 Notice of Improvements.The City must give Company reasonable no- and defend,it will thereafter have control of such litigation,but Company tice of plans for improvements to Public Grounds or Public Ways where may not settle such litigation without the consent of the City,which consent the City has reason to believe that Gas Facilities may affect or be affected shall not be unreasonably withheld.This section is not,as to third parties, by the improvement.The notice must contain:(i)the nature and character a waiver of any defense or immunity otherwise available to the City and of the improvements,(ii)the Public Grounds and Public Ways upon which Company,in defending any action on behalf of the City shall be entitled to the improvements are to be made,(iii)the extent of the improvements,(iv) assert in any action every defense or immunity that the City could assert the time when the City will start the work,and(v)if more than one Public in its own behalf. Ground or Public Way is involved,the order in which the work is to proceed. SECTION 7.VACATION OF PUBLIC WAYS. The notice must be given to Company a sufficient length of time in advance of the actual commencement of the work to permit Company to make any The City shall give Company at least two weeks prior written notice of a necessary additions,alterations or repairs to its Gas Facilities. proposed vacation of a Public Way. Except where required for a City SECTION 4.RELOCATIONS. im- provement project,the vacation of any Public Way,after the installation of Gas Facilities,shall not operate to deprive Company of its rights to operate 4.1 Relocation of Gas Facilities in Public Ways.If the City determines to va- and maintain such Gas Facilities, until the reasonable cost of relocating cate a Public Way for a City improvement project,or at City's cost to grade, the same and the loss and expense resulting from such relocation are first regrade,or change the line of any Public Way,or construct or reconstruct paid to Company.In no case,however,shall City be liable to Company for any City Utility System in any Public Way,it may order Company to relocate failure to specifically preserve a right of way under Minnesota Statutes, its Gas Facilities located therein if relocation is reasonably necessary to Section 160.29. accomplish the City's proposed public improvement.Except as provided in SECTION 8.CHANGE IN FORM OF GOVERNMENT. 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 Any change in the form of government of the City shall not affect the validity improvement project,or to grade,regrade,or change the line of any Public of this Ordinance.Any governmental unit succeeding the City shall,without Way or to construct or reconstruct any City Utility System.If a relocation the consent of Company,succeed to all of the rights and obligations of the is ordered within five years of a prior relocation of the same Gas Facilities, City provided in this Ordinance. which was made at Company expense,the City shall reimburse Company SECTION 9.FRANCHISE FEE. for Non-Betterment Costs on a time and material basis,provided that if a subsequent relocation is required because of the extension of a City Util- 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 person(including the public at large)so as to constitute any such person may impose on the Company a franchise fee by collecting the amounts as a third party beneficiary of the agreement or of any one or more of the indicated in a Fee Schedule set forth in a separate ordinance from each terms hereof,or otherwise give rise to any cause of action in any person customer in the designated Company Customer Class. not a party hereto. 9.2 Separate Ordinance.The franchise fee shall be imposed by a separate SECTION 11.AMENDMENT PROCEDURE. ordinance duly adopted by the City Council,which ordinance shall not be to this franchise agreement may at any time that the adopted until at least 90 days after written notice enclosing such proposed agreement Either partyt be amended tos address a subject of time proposen and the other ordinance has been served upon Company by certified mail.The fee shall not become effective until the beginning of a Company billing month at party will consider whether it agrees that the amendment is mutually appro- least 90 days after written notice enclosing such adopted ordinance has priate.If an amendment is agreed upon,this Ordinance may be amended at been served upon Company by certified mail.Section 2.5 shall constitute any time by the City passing a subsequent ordinance declaring the provi- the sole remedy for solving disputes between Company and the City in sions of the amendment,which amendatory ordinance shall become effec- regard to the interpretation of,or enforcement of,the separate ordinance. tive upon the filing of Company's written consent thereto with the City Clerk No action by the City to implement a separate ordinance will commence within 90 days after the date of final passage by the City of the amendatory until this Ordinance is effective.A separate ordinance which imposes a ordinance. lesser franchise fee on the residential class of customers than the maxi- SECTION 12.PREVIOUS FRANCHISES SUPERSEDED. mum amount set forth in Section 8.1 above shall not be effective against Company unless the fee imposed on each other customer classification This franchise supersedes any previous gas franchise granted to Company is reduced proportionately in the same or greater amount per class as the or its predecessor. reduction represented by the lesser fee on the residential class. Passed and approved:February 17,2015 9.3 Collection of the Fee.The franchise fee shall be payable quarterly and /s/Ted Kozlowsli shall be based on the amount collected by Company during complete bill- Ted Kozlowski,Mayor ing months during the period for which payment is to be made by imposing Attest: a surcharge equal to the designated franchise fee for the applicable cus- /s/Nancy Manos tomer classification in all customer billings for gas service in each class. Nancy Manos,Acting City Clerk 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 Date Published:Friday,February 20,2015 by ordinance from time to time;however,each change shall meet the same 2/20/15,3SG,Ordinance 1074,352302 notice 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 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 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 reason- able 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. 9.4 Terms Defined. 9.4.1 "Customer 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. 9.4.2"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 gas tar- iffs after the effective date of this franchise agreement. 9.4.3 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. 9.5 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 compar- ing amounts collected as a franchise fee from each similar customer,or by comparing,as to similar customers the percentage of the annual bill repre- sented 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. SECTION 10.PROVISIONS OF ORDINANCE. 10.1 Severability.Every section,provision,or part of this Ordinance is de- clared separate from every other section,provision,or part and if any sec- tion, 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 Ordi- nance shall prevail. 10.2 Limitation on Applicability. This Ordinance constitutes a franchise agreement between the City and Company as the only parties and no pro- vision of this franchise shall in any way inure to the benefit of any third