HomeMy WebLinkAbout2015-12 Xcel Energy Franchising Ordinances ORDINANCE NO. 2015-12
CITY OF EDINA, HENNEPIN COUNTY, MINNESOTA
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 EDINA, 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 GROUNDS AND PUBLIC WAYS OF THE CITY FOR SUCH PURPOSES.
THE CITY COUNCIL OF THE CITY OF EDINA, HENNEPIN 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 Edina, County of Hennepin, 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 electric 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 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.
1.6 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, 5`h Floor, Minneapolis, MN 55401. Notice to the City shall be
mailed to the City Administrator, City Hall, 481 West 50`h Street, Edina, MN 55424. Either
party may change its respective address for the purpose of this Ordinance by written notice to
the other party.
1.7 Public Ground. Land owned by the City for park, open space or similar purpose,
which is held for use in common by the public.
Ordinance No. 2015-12
Page 2
1.8 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 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 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 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 2166.40.
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. 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 previously installed
therein. Electric Facilities shall be located on Public Grounds as determined by the City.
Ordinance No. 2015-12
Page 3
Company's construction, reconstruction, operation, repair, maintenance and location of Electric
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 Electric Facilities in place, provided at the City's request,
Company will remove abandoned metal or concrete encased conduit interfering with a City
improvement project, but only to the extent such conduit is uncovered by excavation as part of
the City improvement project.
3.2 Field Locations. Company shall provide field locations for its underground Electric
Facilities within City consistent with the requirements of Minnesota Statutes, Chapter 216D.
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
Electric 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 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.
3.6 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
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 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
Ordinance No. 2015-12
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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 Electric Facilities.
3.7 Shared Use of Poles. Company shall make space available on its poles or towers
for City fire, water utility, police or other City facilities upon terms and conditions acceptable to
Company 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.
4.1 Relocation of Electric 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 Electric 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 Electric 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 Electric 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 expense. Nothing in this Ordinance requires Company to
relocate, remove, replace or reconstruct at its own expense its Electric 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 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.
4.3 Projects with Federal Funding. City shall not order Company to remove or
relocate its Electric 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 Electric 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.
Ordinance No. 2015-12
Page 5
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.
SECTIONS. TREE TRIMMING.
Company may trim all trees and shrubs in the Public Grounds and Public Ways 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.
6.1 Indemnity of Citi. 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 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 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 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 City be liable to Company for failure to specifically preserve a right-of-way
under Minnesota Statutes, Section 160.29.
Ordinance No. 2015-12
Page 6
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 Company, the City may impose on Company a franchise
fee 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 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.
9.3 Terms 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.
9.4 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 electric service in each class. The
payment shall be due the last business day of the month following the period for which the
Ordinance No. 2015-12
Page 7
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.
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.
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
Ordinance No. 2015-12
Page 8
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.
First Reading: October 20, 2015
Second Reading: November 4, 2015
Published: November 12, 2015
Attest
Debra A. Mangen, City Clerk ovland, ayor
Please publish in the Edina Sun Current on November 12, 2015
Send two affidavits of publication.
Bill to Edina City Clerk
AFFIDAVIT OF PUBLICATION City of Edina of 20 years from the date passed to permits if required by separate
(Official Publication) and approved by the City,the right ordinance and to other reasonable
STATE OF MINNESOTA )ss ORDINANCE NO. 2015-12 to transmit and furnish electric en- regulations of the City to the extent
COUNTY OF HENNEPIN CITY OF EDINA, ergy for light,heat,power and other not inconsistent with the terms of
HENNEPIN COUNTY,MINNESOTA purposes for public and private use this franchise agreement.Company
AN ORDINANCE GRANTING within and through the limits of the may abandon underground Electric
City as its boundaries now exist Facilities in place, provided at the
Charlene Vold being duly sworn on an oath, TO NORTHERN STATES POW-
or as they may be extended in the City's request, Company will re-
states or affirms that he/she is the Publishers ER COMPANY, A MINNESOTA future. For these purposes, Com- move abandoned metal or concrete
Designated Agent of the newspaper(s)known CORPORATION, D/B/A XCEL pany may construct, operate, re- encased conduit interfering with a
as: ENERGY, ITS SUCCESSORS pair and maintain Electric Facilities City improvement project, but only
AND ASSIGNS, PERMISSION TO in, on, over, under and across the to the extent such conduit is uncov-
SC Edina CONSTRUCT,OPERATE, REPAIR Public Grounds and Public Ways ered by excavation as part of the
AND MAINTAIN IN THE CITY OF of City, subject to the provisions City improvement project.
EDINA, MINNESOTA, AN ELEC- of this Ordinance. Company may 3.2 Field Locations. Company
with the known office of issue being located TRIC DISTRIBUTION SYSTEM do all reasonable things necessary shall provide field locations for
AND TRANSMISSION LINES, IN-
in the county of: or customary to accomplish these its underground Electric Facilities
HENNEPIN CLUDING NECESSARY POLES, purposes,subject,however,to such within City consistent with the re-
LINES, FIXTURES AND APPUR- reasonable regulations as may be quirements of Minnesota Statutes,
with additional circulation in the counties of. TENANCES, FOR THE FURNISH- imposed by the City pursuant to Chapter 216D.
HENNEPIN ING OF ELECTRIC ENERGY TO ordinance and to the further provi- 3.3 Street Openings. Company
and has full knowledge of the facts stated THE CITY, ITS INHABITANTS, sions of this franchise agreement. shall not open or disturb any Public
AND OTHERS,AND TO USE THE 2.2 Effective Date• Written Ac- Ground or Public Way for any pur-
below: PUBLIC GROUNDS AND PUBLIC agreement ce tance.This franchise a
(A)The newspaper has complied with all of WAYS OF THE CITY FOR SUCH IL 9 pose without first having obtained
PURPOSES. shall be in force and effect from and a permit from the City, if required
the requirements constituting qualifica- after passage of this Ordinance,its by a separate ordinance,for which
tion as a qualified newspaper as provided CITY OF EDINA, HENNEPIN THE CITY COUNCIL OF THE acceptance by Company,Pa y, and its the City may impose a reasonable
by Minn. Stat.§331A.02. COUNTY,MINNESOTA,ORDAINS: publication as required by law.The fee. Permit conditions imposed on
City, by Council resolution, may Company shall not be more burden-
(B)This Public Notice was printed and pub- SECTION 1.DEFINITIONS. revoke this franchise agreement some than those imposed on other
lished in said newspaper(s) once each For purposes of this Ordinance, if Company does not file a written utilities for similar facilities or work.
week, for 1 successive week(s); the first the following capitalized terms list- acceptance with the City within 90 Company may, however,open and
ed in alphabetical order shall have days after publication. disturb any Public Ground or Pub-
insertion being on 11/12/2015 and the last the following meanings: 2.3 Service and Rates.The ser- lic Way without permission from
insertion being on 11/12/2015. 1.1 City.The City of Edina,Coun- vice to be provided and the rates to the City where an emergency ex-
ty of Hennepin,State of Minnesota. be charged by Company for electric ists requiring the immediate repair
MORTGAGE FORECLOSURE NOTICES 1.2 City Utility System.Facilities service in City are subject to the ju- of Electric Facilities. In such event
used for providing non-energy re- risdiction of the Commission. The Company shall notify the City by
Pursuant to Minnesota Stat. §580.033 lated public utility service owned or area within the City in which Com- telephone to the office designated
relating to the publication of mortgage operated by City or agency thereof, pany may provide electric service is by the City as soon as practicable.
foreclosure notices: The newspaper complies including sewer and water service, subject to the provisions of Minne- Not later than the second working
with the Conditions described in §580.033, but excluding facilities for provid- sota Statutes,Section 2166.40. day thereafter, Company shall ob-
ing heating,lighting or other forms 2.4 Publication Expense. The tain any required permits and pay
subd. 1, clause (1) or(2). If the newspaper's of energy. expense of publication of this Ordi- any required fees.
known office of issue is located in a count 1.3 Commission.The Minnesota
y Hance will be paid by City and reim- 3.4 Restoration. After undertak-
adjoinin the count where the mortgaged Public Utilities Commission,or any bursed to Cit b Company. in an work requiringthe opening
g ysuccessor agency or agencies, in- Y Y ti y' 9 y c g
premises or some part of the mortgaged cluding an agency of the federal 2.5 Dispute Resolution. If either C any Public Ground or Public Way,
remises described in the notice are located, party asserts that the other party is Company shall restore the same,in-
premises government, which preempts all, in default in the performance of any cluding paving and its foundation,to
a substantial portion of the newspaper's or part of the authority to regulate obligation hereunder,the complain- as good a condition as formerly ex-
circulation is in the latter county. electric retail rates now vested in ing party shall notify the other party isted,and shall maintain any paved
the Minnesota Public Utilities Com- of the default and the desired rem- surface in good condition for one
mission. edy. The notification shall be writ- year thereafter. The work shall be
1.4 Company. Northern States ten. Representatives of the parties completed as promptly as weather
By: A V / Power Company,a Minnesota cor- must promptly meet and attempt in permits, and if Company shall not
poration,d/b/a Xcel Energy,its suc- good faith to negotiate a resolution promptly perform and complete
Designated Agent cessors and assigns. of the dispute. If the dispute is not the work, remove all dirt, rubbish,
1.5 Electric Facilities. Electric resolved within 30 days of the writ- equipment and material, and put
Subscribed and sworn to or affirmed before transmission and distribution tow- ten notice, the parties may jointly the Public Ground or Public Way
ers, poles, lines, guys, anchors, select a mediator to facilitate further in the said condition,the Cityshall
me on 1 1/12/2015 by Charlene Vold. conduits, fixtures, and necessary discussion.The parties will
appurtenances owned or operated p equally have,after demand to Company to
share the fees and expenses of this cure and the passage of a reason-
by Company for the purpose of pro- mediator.If a mediator is not used, able period of time following the de-
I viding electric energy for public use. or if the parties are unable to resolve mand,but not to exceed five days,
1.6 Notice. A written notice the dispute within 30 days after first the right to make the restoration at
served by one party on the other meeting with the selected mediator, the expense of Company. Com-
Notary Public party referencing one or more pro- either party may commence an ac- pany shall pay to the City the cost
visions of this Ordinance. Notice tion in District Court to interpret and of such work done for or performed
vvvv�ivvvHn/�nnM to Company shall be mailed to the enforce this franchise or for such by the City.This remedy shall be in
General Counsel,414 Nicollet Mall, other relief as may be permitted by addition to any other remedy avail-
5th MARIE MACPHERSON 5th Floor, Minneapolis, MN 55401. law or equity for breach of contract, able to the City for noncompliance
Notary Public-trinesota Notice to the City shall be mailed to or either party may take any other with this Section 3.4, but the City
the City Administrator,City Hall,481 action permitted by law. hereby waives any requirement for
My Comrttlselon Expkes Jan 31,2018 West 50th Street,Edina,MN 55424. SECTION 3. LOCATION. OTH- Company to post a construction
Either party may change its respec- ER REGULATIONS, performance bond,certificate of in-
tive address for the purpose of this 3.1 Location of Facilities. Elec- surance,letter of credit or any other
Ordinance by written notice to the tric Facilities shall be located,con- form of security or assurance that
other party. structed and maintained so as not to may be required, under a separate
1.7 Public Ground.Land owned interfere with the safety and cone- existing or future ordinance of the
by the City for park,open space or nience of ordinary travel along and City, of a person or entity obtain-
similar purpose, which is held for over Public Ways and so as not to ing the City's permission to install,
use in common by the public. disrupt normal operation of any City replace or maintain facilities in a
Rate Information: 1.8 Public Way.Any street,alley, Utility System previously installed Public Way.
(1)Lowest classified rate paid by commercial users walkway or other public right-of- therein. Electric Facilities shall be 3.5 Avoid Damage to Electric
for comparable space: way within the City. located on Public Grounds as deter- Facilities.Nothing in this Ordinance
SECTION 2. ADOPTION OF mined by the City.Company's con- relieves any person from liability
$34.45 per column inch FRANCHISE. struction,reconstruction,operation, arising out of the failure to exercise
2.1 Grant of Franchise.City here- repair,maintenance and location of reasonable care to avoid damaging
Ad ID 472464 by grants Company, for a period Electric Facilities shall be subject Electric Facilities while performing
any activity. expense, to relocate or remove 6.2 Defense of City.In the event fee on the residential class of cus-
3.6 Notice of Improvements.The its Electric Facilities from Public a suit is brought against the City tomers than the maximum amount
City must give Company reason- Ground upon a finding by City that under circumstances where this set forth in Section 9.1 above shall
able notice of plans for improve- the Electric Facilities have become agreement to indemnify applies, not be effective against Company
ments to Public Grounds or Public or will become a substantial impair- Company at its sole cost and ex- unless the fee imposed on each
Ways where the City has reason to ment to the existing or proposed pense shall defend the City in other customer classification is re-
believe that Electric Facilities may public use of the Public Ground. such suit if written notice thereof is duced proportionately in the same
affect or be affected by the improve- 4.3 Projects with Federal Fund- promptly given to Company within or greater amount per class as the
ment. The notice must contain: () intc.City shall not order Company to a period wherein Company is not reduction represented by the lesser
the nature and character of the im- remove or relocate its Electric Facili- prejudiced by lack of such notice. fee on the residential class.
provements,(H)the Public Grounds ties when a Public Way is vacated, If Company is required to indem- 9.3 Terms Defined.For the pur-
and Public Ways upon which the improved or realigned for a right- nify and defend, it will thereafter pose of this Section 9,the following
improvements are to be made, (iii) of-way project or any other proj- have control of such litigation, but definitions apply:
the extent of the improvements,(iv) ect which is financially subsidized Company may not settle such litiga- 9.3.1 "Customer Class"shall re-
the time when the City will start the in whole or in part by the Federal tion without the consent of the City, fer to the classes listed on the Fee
work,and(v)if more than one Pub- Government or any agency thereof, which consent shall not be unrea- Schedule and as defined or deter-
lic Ground or Public Way is involved, unless the reasonable non-better- sonably withheld. This section is mined in Company's electric tariffs
the order in which the work is to ment costs of such relocation are not,as to third parties,a waiver of on file with the Commission.
proceed.The notice must be given first paid to Company. The City is any defense or immunity otherwise 9.3.2 "Fee Schedule" refers to
to Company a sufficient length of obligated to pay Company only for available to the City and Company, the schedule in Section 9.1 setting
time in advance of the actual com- those portions of its relocation costs in defending any action on behalf of forth the various customer classes
mencement of the work to permit for which City has received federal the City, shall be entitled to assert from which a franchise fee would
Company to make any necessary funding specifically allocated for in any action every defense or im- be collected if a separate ordinance
additions, alterations or repairs to relocation costs in the amount re- munity that the City could assert in were implemented immediately
its Electric Facilities. quested by the Company, which its own behalf. after the effective date of this fran-
3.7 Shared Use of Poles. Com- allocated funding the City shall SECTION 7. VACATION OF chise agreement.The Fee Schedule
pany shall make space available specifically request. Relocation, PUBLIC WAYS. in the separate ordinance may in-
on its poles or towers for City fire, removal or rearrangement of any The City shall give Company at clude new Customer Class added
water utility,police or other City fa- Company Electric Facilities made least two weeks prior written notice by Company to its electric tariffs
cilities upon terms and conditions necessary because of a federally- of a proposed vacation of a Public after the effective date of this fran-
acceptable to Company whenever aided highway project shall be Way. Except where required for a chise agreement.
such use will not interfere with the governed by the provisions of Min- City improvement project,the vaca- 9.4 Collection of the Fee.The
use of such poles or towers by nesota Statutes, Section 161.46, tion of any Public Way,after the in- franchise fee shall be payable quar-
Company, by another electric util- as supplemented or amended.It is stallation of Electric Facilities, shall terly and shall be based on the
ity, by a telephone utility,or by any understood that the rights herein not operate to deprive Company of amount collected by Company dur-
cable television company or other granted to Company are valuable its rights to operate and maintain ing complete billing months during
form of communication company.In rights. such Electric Facilities,until the rea- the period for which payment is to
addition,the City shall pay for any 4.4 No Waiver. The provisions sonable cost of relocating the same be made by imposing a surcharge
added cost incurred by Company of this franchise apply only to fa- and the loss and expense resulting equal to the designated franchise
because of such use by City. cilities constructed in reliance on from such relocation are first paid fee for the applicable customer
SECTION 4.RELOCATIONS. a franchise from the City and shall to Company. In no case, however, classification in all customer billings
4.1 Relocation of Electric Facili- not be construed to waive or modify shall City be liable to Company for for electric service in each class.
ties in Public Ways. If the City de- any rights obtained by Company failure to specifically preserve a right The payment shall be due the last
termines to vacate a Public Way for installations within a Company of way under Minnesota Statutes, business day of the month following
for a City improvement project, or right-of-way acquired by easement Section 160.29. the period for which the payment
at City's cost to grade, regrade, or or prescriptive right before the ap- SECTION 8.CHANGE IN FORM is made.The franchise fee may be
change the line of any Public Way, plicable Public Ground or Public OF GOVERNMENT, changed by ordinance from time to
or construct or reconstruct any City Way was established,or Company's Any change in the form of gov- time; however, each change shall
Utility System in any Public Way,it rights under state or county permit. ernment of the City shall not af- meet the same notice requirements
may order Company to relocate its SECTION 5.TREE TRIMMING. fect the validity of this Ordinance. and not occur more often than an-
Electric Facilities located therein if Company may trim all trees Any governmental unit succeeding nually and no change shall require
relocation is reasonably necessary and shrubs in the Public Grounds the City shall, without the consent a collection from any customer for
to accomplish the City's proposed and Public Ways of City to the ex- of Company, succeed to all of the electric service in excess of the
public improvement. Except as tent Company finds necessary to rights and obligations of the City amounts specifically permitted by
provided in Section 4.3, Company avoid interference with the proper provided in this Ordinance. this Section 9.The time and man-
shall relocate its Electric Facilities construction, operation, repair and SECTION 9.FRANCHISE FEE. ner of collecting the franchise fee is
at its own expense.The City shall maintenance of any Electric Fa- 9.1 Fee Schedule. During the subject to the approval of the Com-
give Company reasonable notice of cilities installed hereunder,provided term of the franchise hereby grant- mission. No franchise fee shall be
plans to vacate for a City improve- that Company shall save the City ed,and in lieu of any permit or other payable by Company if Company
ment project,or to grade, regrade, harmless from any liability arising fees being imposed on Company, is legally unable to first collect an
or change the line of any Public Way therefrom,and subject to permit or the City may impose on Company a amount equal to the franchise fee
or to construct or reconstruct any other reasonable regulation by the franchise fee set forth in a separate from its customers in each applica-
City Utility System.If a relocation is City. ordinance from each customer in ble class of customers by imposing
ordered within five years of a prior SECTION 6.INDEMNIFICATION. the designated Company Customer a surcharge in Company's applica-
relocation of the same Electric Fa- 6.1 Indemnity of City. Company Class. ble rates for electric service. Com-
cilities,which was made at Compa- shall indemnify, keep and hold the 9.2 Separate Ordinance. The pany may pay the City the fee based
ny expense,the City shall reimburse City free and harmless from any and franchise fee shall be imposed by a upon the surcharge billed subject to
Company for non-betterment costs all liability on account of injury to separate ordinance duly adopted by subsequent reductions to account
on a time and material basis, pro- persons or damage to property oc- the City Council, which ordinance for uncollectibles, refunds and cor-
vided that if a subsequent relocation casioned by the construction,main- shall not be adopted until at least rection of erroneous billings. Com-
is required because of the extension tenance,repair,inspection,the issu- 90 days after written notice enclos- pany agrees to make its records
of a City Utility System to a previ- ance of permits,or the operation of ing such proposed ordinance has available for inspection by the City
ously unserved area,Company may the Electric Facilities located in the been served upon Company by at reasonable times provided that
be required to make the subsequent Public Grounds and Public Ways. certified mail.The fee shall not be- the City and its designated repre-
relocation at its expense. Nothing in The City shall not be indemnified for come effective until the beginning of sentative agree in writing not to dis-
this Ordinance requires Company to losses or claims occasioned through a Company billing month at least 90 close any information which would
relocate, remove,replace or recon- its own negligence except for losses days after written notice enclosing indicate the amount paid by any
struct at its own expense its Electric or claims arising out of or alleging such adopted ordinance has been identifiable customer or customers
Facilities where such relocation,re- the City's negligence as to the issu- served upon Company by certified or any other information regarding
moval, replacement or reconstruc- ance of permits for,or inspection of, mail. Section 2.5 shall constitute identified customers.
tion is solely for the convenience Company's plans or work.The City the sole remedy for solving dis- 9.5 Equivalent Fee Require-
of the City and is not reasonably shall not be indemnified if the injury putes between Company and the ment.The separate ordinance im-
necessary for the construction or or damage results from the perfor- City in regard to the interpretation posing the fee shall not be effective
reconstruction of a Public Way or mance in a proper manner,of acts of,or enforcement of,the separate against Company unless it lawfully
City Utility System or other City im- reasonably deemed hazardous by ordinance. No action by the City imposes and the City monthly or
provement. Company,and such performance is to implement a separate ordinance more often collects a fee or tax
4.2 Relocation of Electric Fa- nevertheless ordered or directed by will commence until this Ordinance of the same or greater equivalent
cilities in Public Ground. City may City after notice of Company's de- is effective. A separate ordinance amount on the receipts from sales
require Company, at Company's termination. which imposes a lesser franchise 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 ve-
hicles. 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 con-
ditions 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 oth-
er 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 provi-
sions of this Ordinance, the provi-
sions of this Ordinance shall prevail.
10.2 Limitation on Applicability.
This Ordinance constitutes a fran-
chise agreement between the City
and Company as the only par-
ties, and no provision of this fran-
chise shall in any way inure to the
benefit of any third person(includ-
ing the public at large)so as to con-
stitute 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 wheth-
er it agrees that the amendment is
mutually appropriate. If an amend-
ment is agreed upon,this Ordinance
may be amended at any time by the
City passing a subsequent ordi-
nance 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 amenda-
tory ordinance.
SECTION 12. PREVIOUS
FRANCHISES SUPERSEDED.
This franchise supersedes any
previous electric franchise granted
to Company or its predecessor.
First Reading:October 20,2015
Second Reading:November4,2015
Published:November 12,2015
Attest
Debra A.Mangen,City Clerk
James B.Hovland;Mayor
11/12/15,3SC1,
Ordinance No.2015-12,472464