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HomeMy WebLinkAbout1983-1116 Minnegasco Franchise Ordinance ORDINANCE NO. 1116 AN ORDINANCE GRANTING MINNESGACO, INC. , A MINNESOTA CORPORATION, ITS SUCCESSORS AND ASSIGNS , A NONEXCLUSIVE FRANCHISE TO CONSTRUCT, OPERATE, REPAIR AND MAINTAIN FACILITIES AND EQUIPMENT FOR THE TRANSPORTATION, DISTRI- BUTION, MANUFACTURE AND SALE OF GAS ENERGY FOR PUBLIC AND PRIVATE USE AND TO USE THE PUBLIC GROUND OF THE CITY OF EDINA, MINNESOTA FOR SUCH PURPOSES; AND PRESCRIBING CERTAIN TERMS AND CONDITIONS THEREOF . THE CITY COUNCIL OF THE CITY OF EDINA, MINNESOTA, ORDAINS : SECTION 1 . DEFINITIONS . The following terms shall mean: 1. 1. Company. Minnesgaco, Inc. , a Minnesota corporation, its successors and assigns . 1. 2 . Gas . Natural gas , manufactured gas , mixture of natural gas and manufactured gas and other forms of gas energy. 1. 3 . Municipality, Municipal Council, Municipal Clerk. These terms mean respectively, the City of Edina, the Council of the City of Edina and the Clerk of the City of Edina. 1. 4 . Public Ground. All streets , alleys , public ways , utility easements and public ground of the Municipality as to which it has the right to grant the use to the Company. SECTION 2 . FRANCHISE GENERALLY. 2 . 1 . Grant of Franchise . There is hereby granted to the Company, from the effective date hereof through June 30 , 2003 , the right to import, manufacture , transport, distribute and sell gas for public and private use in the Municipality, and for these purposes to construct, operate , repair and maintain in, on, over, under and across the Public Ground of the Munic_ipality, all facilities and equipment used in connection therewith, and to do all things which are necessary or customary in the accomplishment of these objectives , subject to zoning ordinances , other applicable ordinances , permit procedures , customary practices, and the pro- visions of this franchise. 212C Ordinance No. 1116 2 .2 . Effective Date; Written Acceptance . This franchise shall be in force and effect from and after its passage and publication as required by law, and its acceptance by the Company in writing filed with the Municipal Clerk within 60 days after publication. 2 .3 . Nonexclusive Franchise. This is not an exclusive franchise. 2 .4. Franchise Fee. The Company may be required to pay to the Municipality, in the manner and at a rate prescribed by a separate ordinance, a fee determined by collections from sales of Gas, but not to exceed 5% of the Company' s gross revenues from the sale of Gas within the Municipality. Such ordinance mav_ be adopted, amended, repealed or readopted at any time during the term of this franchise. The fee, if required, shall be effective 90 days after written notice of the ordinance to the Company. No such fee shall be effective as to sales made before January 1 , 1984. The fee shall be separately stated on gas bills rendered to customers within the Municipality. 2 . 5 . Publication Expense. The expense of publication of this ordinance shall be paid by the Company. 2 . 6 . Default. If the Company is in default in the perfor- mance of any material part of this franchise for more than 90 days after receiving written notice from the Municipality of such default, the Municipal Council may, by ordinance, terminate all rights granted hereunder to the Company. The notice of default shall be in writing and shall specify the provisions of this franchise under which the default is claimed and state the bases therefor. Such notice shall be served on the Company by per- sonally delivering it to an officer thereof at its principal place of business in Minnesota. If the Company is in default as to any part of this fran- chise, the Municipality may, after reasonable notice to the Company and the failure of the Company to cure the default within a reasonable time, take such action as may be reasonably neces- sary to abate the condition caused by the default, and the Com- pany agrees to reimburse the Municipality for all its reasonable costs and for its costs of collection, including attorney fees . Nothing in this section shall bar the Company from chal- lenging the Municipality' s claim that a default has occurred. In the event of disagreement over the existence of a default, the burden of proving the default shall be on the Municipality. SECTION 3 . CONDITIONS OF USE. 3 . 1 . Use of Public Ground. All utility facilities and equipment of the Company shall be located, constructed, installed and maintained so as not to endanger or unnecessarily interfere Ordinance No. 1116 with the usual and customary traffic, travel , and use of public ground, and shall be subject to permit conditions of the Munici- pality. The permit conditions may provide for the right of inspection by the Municipality, and the Company agrees to make its facilities and equipment available for inspection at all reasonable times and places . 3 .2 . Permit required. The Company shall not open or dis- turb the surface of any public ground for any purpose without first having obtained a permit from the Municipality, for which the Municipality may impose a reasonable fee to be paid by the Company. The permit conditions imposed on the Company shall not be more burdensome than those imposed on other utilities for similar facilities or work. The mains , services and other prop- erty placed pursuant to such permit shall be located as shall be designated by the Municipality. The Company may, however, open and disturb the surface of any public ground without a permit where an emergency exists requiring the immediate repair of its facilities . The Company in such event shall request a permit not later than the second working day thereafter. 3 .3 . Restoration. Upon completion of any work requiring the opening of any Public Ground, the Company shall restore the same, including paving and its foundations , to as good condition as formerly, and shall exercise reasonable care to maintain the same for two years thereafter in good condition. Said work shall be completed as promptly as weather permits , and if the Company shall not promptly perform and complete the work, remove all dirt, rubbish, equipment and material, and put the Public Ground in good condition, the Municipality shall have the right to put it in good condition at the expense of the Company; and the Company shall, upon demand, pay to the Municipality the cost of such work done for or performed by the Municipality, including its administrative expense and overhead, together with ten per- cent additional as liquidated damages . This remedy shall be in addition to any other remedy available to the Municipality. 3 .4. Relocation of Utilitv Facilities . The Company shall promptly, with due regard for seasonal working conditions , per- manently relocate its facilities or equipment whenever the Muni- cipality orders such relocation. If the relocation is a result of the proper exercise of the police power in grading, regrading, changing the location or shape of or otherwise improving any Public Ground or constructing or reconstructing any sewer or water system therein, the relocation shall be at the expense of the Company. If the relocation is not a result of the proper exercise of the police power, the relocation shall be at the expense of the Municipality. If such relocation is done without an agreement first being made as to who shall pay the relocation cost, such relocation of the facilities by the Company shall not be construed as a waiver of its right to be reimbursed for the 3 Ordinance No. 1116 relocation cost. If the Company claims that it should be reim- bursed for such relocation costs , it shall notify the Munici- pality within thirty days after receipt of such order. The Municipality shall give the Companv reasonable notice of plans requiring such relocation. Nothing contained in this subsection shall require the Company to remove and replace its mains or to cut and reconnect its service pipe running from the main to a customer' s premises at its own expense where the removal and replacement or cutting and reconnecting is made for the purpose of a more expeditious operation for the construction or reconstruction of underground facilities ; nor shall anything contained herein relieve any person from liability arising out of the failure to exercise reasonable care to avoid damaging the Company' s facilities while performing any work in any Public Ground. 3 . 5 . Relocation When Public Ground Vacated. The vacation of anv Public Ground shall not operate to deprive the Company of the right to operate and maintain its facilities therein. Unless ordered under Section 3 .4, the Companv need not relocate until the reasonable cost of relocating and the loss and expense resulting from such relocation are first paid to the Company. When the vacation is for the benefit of the Municipality in the furtherance of a public purpose, the Company shall relocate at its own expense. 3 . 6 . Street Improvements , Paving or Resurfacing. The Municipality shall give the Company reasonable written notice of plans for street improvements where paving or resurfacing of a permanent nature is involved. The notice shall contain the nature and character of the improvements, the streets upon which the improvements are to be made, the extent of the improvements and the time when the Municipality will start the work, and, if more than one street is involved, the order in which this work is to proceed. The notice shall be given to the Company a suffi- cient length of time, considering seasonable working conditions , in advance of the actual commencement of the work to permit the Company to make any additions , alterations or repairs to its facilities the Company deems necessary. In cases where streets are at final width and grade, and the Municipality has installed underground sewer and water mains and service connections to the property line abutting the streets prior to a permanent paving or resurfacing of such streets, and the Company' s main is located under such street, the Company may be required to install gas service connections prior to such paving or resurfacing, whenever it is apparent that gas service will be required during the five years following the paving or resurfacing. SECTION 4. INDEMNIFICATION. The Company shall indemnify, keep and hold the Municipality, its elected officials, officers, 4 Ordinance No. 1116 employees, and agents free and harmless from any and all claims and actions on account of injury or death of persons or damage to property occasioned by the construction, maintenance, repair, removal, or operation of the Company' s property located in, on, over, under, or across the public ground of the Municipality, unless such injury or damage is the result of the negligence of the Municipality, its elected officials , employees , officers , or agents . The Municipality shall not be entitled to reimbursement for its costs incurred prior to notification to the Company of claims or actions and a reasonable opportunity for the Company to accept and undertake the defense. If a claim or action shall be brought against the Municipal- ity under circumstances where indemnification applies , the Com- pany, at its sole cost and expense, shall defend the Municipality if written notice of the claim or action is promptly given to the Company within a period wherein the Company is not prejudiced by lack of such notice. The Company shall have complete control of such claim or action, but it may not settle without the consent of the Municipality, which shall not be unreasonably withheld. This section is not, as to third parties , a waiver of any defense or immunity otherwise available to the Municipality, and the Company in defending any action on behalf of the Municipality shall be entitled to assert every defense or immunity that the Municipality could assert in its own behalf. SECTION 5 . ASSIGNMENT. The Company, upon notice to the Munici- pality, shall have the right and authority to assign ail rights conferred upon it by this franchise to any person. The assignee of such rights, by accepting such assignment, shall become subject to the terms and provisions of this franchise. SECTION 6 . CHANGE IN FORM OF GOVERNMENT. Any change in the form of government of the Municipality shall not affect the validity of this franchise. Any governmental unit succeeding the Munici- pality shall, without the consent of the Company, automatically succeed to all of the rights and obligations of the Municipality provided in this franchise . SECTION 7 . SEVERABILITY. If any portion of— this franchise is found to be invalid for any reason whatsoever, the validity of the rest of this franchise shall not be affected. SECTION 8 . NOTICES . Any notice required by this franchise shall be sufficient if, in the case of notice to the Company, it is delivered to Minnegasco, Inc. , attention Vice President, Minnesota Operations, 201 South Seventh Street, Minneapolis , Minnesota 55402 , and, in the case of the Municipality, it is delivered to: City of Edina, attention City Manager, 4801 West 50th Street, Edina, Minnesota 55424. 5 Ordinance No. 1116 SECTION 9 . PREVIOUS FRANCHISES SUPERCEDED. This franchise supercedes all previous franchises granted to the Company or its predecessors . Passed and approved June 20 , 1983 . First Reading: June 6 , 1983 Second Reading: June 20 , 1983 Published in the Edina Sun on June 29 , 1983 Second Publication: September 28 , 1983 (signed) C. WAYNE COURTNEY Mayor of the City of Edina Minnesota ATTEST: (signed) MARCELLA M. DAEHN Clerk of the City of Edina Minnesota 6