Ordinance
No. 2003- 103
An
ordinance granting to Northern States Power Company, A Minnesota Corporation,
d/b/a xcel energy its successors and assigns, permission to construct,
operate, repair and maintain in the City of GRANT, Minnesota, an electric
distribution system and transmission lines, including necessary poles,
lines, fixtures and appurtenances, for the furnishing of electric energy
to the City, its inhabitants, and others, and to use the public ways and
public grounds of the city for such purposes.
The
City Council of the City oF
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
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 electric retail rates now vested in the Minnesota
Public Utilities Commission.
Company.Northern
States Power Company, a
Electric
Facilities.Electric transmission
and distribution towers, poles, lines, guys, anchors, conduits, fixtures,
and necessary appurtenances owned or operated by Company for the purpose
of providing electric energy for public use.
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,
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.
2.1Grant
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 electric 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 Electric Facilities
in, on, over, under and across the
2.2Effective
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.
2.3Service
and Rates.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.
2.4Publication
Expense.The expense of publication
of this Ordinance will be paid by City and reimbursed to City by Company.
2.5Dispute
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.
3.1Location
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
3.2Field
Locations.Company shall provide
field locations for its underground Electric Facilities within City consistent
with the requirements of Minnesota Statutes, Chapter 216D.
3.3Street
Openings.Company shall not open
or disturb any
3.4Restoration.After
undertaking any work requiring the opening of any
3.5Avoid
Damage to Electric Facilities.Nothing
in this Ordinance relieves any person from liability arising out of the
failure to exercise reasonable care to avoid damaging Electric Facilities
while performing any activity.
3.6Notice
of Improvements.The City must
give Company reasonable notice of plans for improvements to
3.7Shared
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.
Section
4.Relocations.
4.1Relocation
of Electric Facilities in
4.2Relocation
of Electric Facilities in Public Ground.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.
4.3Projects
with Federal Funding.Relocation,
removal, or rearrangement of any Company 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, 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 Electric 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.
4.4No
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 Way or Public
Ground was established, or Company's rights under state or county permit.
Section
5.Tree Trimming.
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, and subject to permit or
other reasonable regulation by the City.
Section
6.Indemnification.
6.1Indemnity
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 Electric Facilities located in the
6.2Defense
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.
Section
7.Vacation of
The
City shall give Company at least two weeks prior written notice of a proposed
vacation of a
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.
9.1Fee
Schedule. During the term of the franchise hereby granted,
and in lieu of any permit or other fees being imposed on Company, the City
may impose on 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 to exceed
the following amounts.
ClassFee
Per Premise Per Month
Residential$2.35
Sm
C & I - Non-Dem$2.00
Sm
C & I - Demand$14.00
Large
C & I$75.00
Public
Street Ltg$2.00
Muni
Pumping -N/D$2.00
MuniPumping
- Dem$2.00
9.2Separate
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 9.1 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.
9.3Terms
Defined. For the purpose of this Section 9, the following
definitions apply:
9.3.1
"Customer Class" shall refer to the classes listed on the Fee Schedule
and as defined or determined in Company's electric tariffs 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 Class added
by Company to its electric tariffs after the effective date of this franchise
agreement.
9.4Collection
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.
9.5Equivalent
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.
10.1Severability.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.
10.2Limitation
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.
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 electric franchise granted to Company
or its predecessor.
Upon roll call, voting AYE: Council members ___________________________________
___________________________________________.
Voting NAY: _______________.
Whereupon said Ordinance was declared passed and adopted this ____ day of December, 2003.
CITY
OF GRANT
______________________________________
Thomas
Carr, Mayor
Attest:
________________________________
Barbara
Bartholdi, City Clerk