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HomeMy WebLinkAbout1995-04 Nothern States Power Company Franchise Ordinance Ordinance No. 1995-4 . CITY OF EDINA, HENNEPIN COUNTY, MINNESOTA AN ORDINANCE GRANTING TO NORTHERN STATES POWER COMPANY, A MINNESOTA CORPORATION, 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 WAYS AND PUBLIC GROUNDS 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 shall have the following meanings, respectively, unless the context in which the defined term is used clearly requires a different interpretation. 1.1 "City" means the City of Edina, County of Hennepin, State of Minnesota. 1.2 "City Utility System" means the facilities used for providing sewer, water,or any other public utility service owned or operated by City or agency thereof. 1.3 "Commission"means 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" means Northern States Power Company, a Minnesota corporation, its successors and assigns. 1.5 "Electric Facilities"means electric transmission and distribution towers, poles,lines,guys, anchors,conduits,fixtures, and necessary appurtenances owned or operated by the Company for the purpose of providing electric energy for public use. 1 1.6 "Notice" means a writing served by an y party or pies on party or parties. Notice to Company shall be mailed to he G neral Counsel,el ober Department, Northern States Power Company, 414 Nicollet Mall, Minneapolis, Minnesota 55401. Notice to City shall be mailed to he City Clerk. Either party may change its respective address for the purpose of this Ordinance by written notice to the other party. 1.7 "Public Way"means any street,alley,or other public right-of-way within the City. 1.8 "Public Ground" means land owned by the City for park, open space or similar purpose, which is held for use in common by the public. Section 2. Fran bin. 2.1 Grant of Fmngh;eA. City hereby grants Company, for a period of 20 years, 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 he future. For theseu ose Company may construct, operate, repair and maintain Electric Facilities in, on, ver under and across he Public Ways and Public Grounds of City, subject to the provisions of this Ordinance. Company may do all reasonable things necessary or customary to accomplish hese purposes, subject, however, to zoning ordinances, other applicable ordinances, permit procedures, and to the further provisions of this franchise. 2.2 Effective a e: written A , This franchise shall be in force and effect from and after its passage and its acceptance by the Company, and i ts publication as required by law. An acceptance by the Company must be filed with he City Clerk within 90 days after publication. 2.3• Service Rates and Area. The service to be provided and he rates to be charged by Company for electric service in City currently are subject to th jurisdiction of he Minnesota Public Utilities Commission. The area within he Ci e in which he Company may City P Y y provide electric service currently is subject to he provisions of Minnesota Statutes, Section 216B.40. 2 2.4. Publication Expense. The expense of publication of this Ordinance shall be paid by the 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 and constructed so as not to interfere with the safety and convenience of ordinary travel along and over Public Ways and they shall be located on Public Grounds as determined by the City. The Company's construction, reconstruction, operation, repair, maintenance and location of Electric Facilities shall be subject to other reasonable regulations of the City. Under this franchise agreement the City does not relinquish its police power regulatory authority and the Company does not relinquish its eminent domain authority. 3.2 Field Locations. The Company shall provide field locations for any of its underground Electric Facilities consistent with the requirements of Minn. Stat. Chapter 216D. 3.3 Street 012enings. The Company shall not open or disturb the paved surface of any Public Way or Public Ground for any purpose without first having obtained permission from the City, for which the City may impose a reasonable fee. Permit conditions imposed on the Company shall not be more burdensome than those imposed on other utilities for similar facilities or work. The Company may,however, open and disturb the paved surface of any Public Way or Public Ground without permission from the City where an emergency exists requiring the immediate repair 3 of Electric Facilities. In such event the Company shall notify the City by telephone to the office designated by the City before opening or disturbing a paved surface of a Public Way or Public Ground. Not later than the second working day thereafter,the Company shall obtain any required permits and pay any required fees. 3.4 Restoration. After undertaking any work requiring the opening of any Public Way or Public Ground, the Company shall restore the same, including paving and its foundation, to as good condition as formerly existed, and shall maintain the same in good condition for two years thereafter. The 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 Way or Public Ground in the said condition, the City shall have, after demand to the 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 the Company. The Company shall pay to the City the cost of such work done for or performed by the City,including its administrative expense and overhead,plus ten percent additional as liquidated damages. This remedy shall be in addition to any other remedy available to the City. 3.5 Shared Use of Poles. The 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 the 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 the Company because of such use by City. Section 4. Relocations, 4.1 Relocation of Electric Facilities in Public Ways. Except as provided in Section 4.3, if the City determines to vacate for a City improvement project, or at City's sole 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 the Company to relocate its Electric Facilities located therein. The Company shall relocate its Electric Facilities at its own expense. The City shall give the 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 Electrical Facilities, which was made at Company expense, the City shall reimburse 4 Company for non-betterment expenses 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 reconnect at its own expense its facilities where such relocation, removal, replacement of 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. Except as may be provided in Section 4.3, City may require the Company 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 of the public use to which the Public Ground is or will be put. The relocation or removal shall be at the Company's expense. The provisions of Section 4 apply only to Electric Facilities constructed in reliance on a franchise and the Company does not waive its rights under an easement or prescriptive right, or State or County permit. 4.3 Projects with Federal Funding. Relocation, removal, or rearrangement of any Company 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 facilities when a Public Way is vacated,improved or realigned because of a renewal or a redevelopment plan which is financially subsidized in whole or in part by the Federal Government or any agency thereof, unless the reasonable non-betterment costs of such relocation and the loss and expense resulting therefrom are first paid to Company,but the City need not pay those portions of such for which reimbursement to it is not available. 4.4 Liam. 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. 5 Section 5. Tree Trimming. The Company may trim all trees and shrubs in the Public Ways and Public Grounds of City interfering with the proper construction, operation, repair and maintenance of any Electric Facilities installed hereunder,provided that the 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 The 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 City. 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, the 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 In the event a suit is brought against the City under circumstances where this agreement to indemnify applies, the Company at its sole cost and expense shall defend the City in such suit if written notice thereof is promptly given to the Company within a period wherein the Company is not prejudiced by lack of such notice. If the Company is required to indemnify and defend, it will thereafter have control of such litigation, but the 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 the 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 the Company at least two weeks' prior written notice of a proposed vacation of a Public Way. Except where required for a City street or other improvement project,the vacation of any Public Way,after the installation of Electric 6 Facilities, shall not operate to deprive Company of its rights to operate and maintain such Electrical 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 the 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 the Company, succeed to all of the rights and obligations of the City provided in this Ordinance. Section 9. Franchise Fee. 9.1. Separate Ordinance. 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 not to exceed an amount determined by collecting the amounts indicated below from each customer in the designated company customer classification for metered service at each and every customer location: Customer Classification Amount per month Residential $ 1.25 Small C & I and Municipal with no demand charge $ 4.50 Small C & I and Municipal with demand charge $10.00 Large C & I and Municipal $65.00 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 the 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 the Company by certified mail. Section 2.5 shall constitute the sole remedy for solving disputes between the 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. No pre-existing ordinance imposing 7 a fee shall be effective against the Company unless it is specifically amended after the effective date of this ordinance following the procedures of this Section 9 for the adoption of a new separate ordinance. A separate ordinance which imposes a lesser franchise fee on the residential class of customers than the amount set forth in the above Fee Schedule shall not be effective against the Company unless the fee imposed on each other customer class in the above Fee Schedule is reduced proportionately by the same percentage as the reduction represented by the lessor fee on the residential class. The payment of a franchise fee as provided by this Section 9.1 does not relieve the Company from paying fees to City unrelated to the installation, ownership or operation of Electric Facilities, such as building permit fees. 9.2 Terms Defined. For the purpose of this Section 9,the following definitions apply: 9.2.1 "Customer Classification" shall refer to the classes listed on the Fee Schedule and as defined or determined in the Company's electric tariffs on file with the Commission. 9.2.2 "Fee Schedule" refers to the schedule in Section 9.1 setting forth an amount per month for various customer classes. 9.2.3 "Final Order" refers to an order of the Commission changing the Company's electric service rates for one or more of the Company's Customer Classification in which order is not an interim order and that the time for appeal on such order has expired or that in the event of appeal all proceedings relating to the appeal have been exhausted. 9.3 Collection of the Fee. The franchise fee shall be payable not less often than quarterly, and shall be based on the amount collected by the 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 metered 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 metered 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 8 Commission, which the Company agrees to use its best efforts to obtain. No franchise fee shall be payable by the Company if the 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 the Company's applicable rate for electric service. The Company may pay the City the fee based upon the surcharge billed subject to subsequent reductions to account for uncollectibles. The 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 Condition of the Fee. The separate ordinance imposing the fee shall not be effective against the Company unless it lawfully imposes and the City quarterly 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 the franchise fee purposes. If neither of the above comparisons are practicable because the fees are so dissimilar in nature, the "same or greater equivalent amount" shall be calculated by comparing the amount of the franchise fee per BTU being collected from the same or any similar class of customers of the Company and of another energy supply. The franchise fee or tax shall be applicable to energy sales for any energy use related to heating, cooling, or lighting, as well as to the supply of energy needed to run machinery and appliances on premises located within or adjacent to the City, but shall not apply to energy sales for the purpose of providing fuel for vehicles. 9.5 permitted Adjustments. If following effective date of this franchise the Commission by Final Order approves a change in the Company's electric rates resulting in a general rate increase for one or more Customer Classifications, the Company shall calculate and send to the City a letter setting forth the amount, as a percentage,of authorized increase for each classification of customer within 60 days after the Company receives the Final Order. The amount of the franchise fee that may be imposed by the City, may be increased from the Fee Schedule in Section 9.1 to an amount not to exceed the percentage for the applicable Customer Classification stated in the Company's letter times each monthly amount set forth in the Fee 9 Schedule and adding the resultant amount to the applicable amount set forth in the Fee Schedule. In this manner the franchise fee collected or permitted to be collected from each class of customer can increase by the same percentage as the Company's electric rate increase. During the period where the City has imposed a franchise fee by separate ordinance under Section 9.1 there is no waiver of the right to impose the amendment if the City does not seek an increase in any franchise fee immediately after any such letter from the Company and, if the City so chooses, the City can combine the percentages derived from more than one rate case, to the extent not previously applied by the City, in setting the amount of the franchise fee, so that the City is not prejudiced by delaying any action to impose or increase the franchise fee. Section 10. SeverabilitX. If any portion of this franchise is found to be invalid for any reason whatsoever, the validity of the remainder shall not be affected. Section 11. Amendment, 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 the Company's written consent thereto with the City Clerk within 90 days after the effective date of the amendatory ordinance. Section 12. Previous Franchises Superseded. This franchise supersedes any previous electric franchise granted to the Company or its predecessor. Passed and approved: August 21 ' 19 95 .r- OD Mayor Attest: City Clerk 10 EXCERPTS OF MINUTES OF REGULAR MEETING OF THE CITY COUNCIL OF THE CITY OF EDINA, HENNEPIN COUNTY, MINNESOTA August 21 , 19 95 A regular meeting of the City Council of the City of Edina, Minnesota, duly called, convened, and held in accordance with law, was called to order by Mayor Richards onthe 21sdlayof August , 19_�§ at 7:00 o'clock p m. at the Council Chamber in said City. The following members, constituting a legal quorum were present: Councilmembers Maetzold, Kelly, Smith, Paulus and Mayor Richards Councilperson introduced a certain Ordinance No. entitled: AN ORDINANCE GRANTING TO NORTHERN STATES POWER COMPANY, A MINNESOTA CORPORATION, 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, POLE LINES, FIXTURES AND APPURTENANCES, FOR THE FURNISHING OF ELECTRIC ENERGY INTO AND THROUGH SAID CITY AND ITS INHABITANTS, AND OTHERS, AND TO USE THE PUBLIC WAYS AND PUBLIC GROUNDS OF SAID CITY FOR SUCH PURPOSES. and on motion made, seconded, and duly adopted, the above-entitled Ordinance was read. Thereafter a motion was made by Councilperson Smith and seconded by Councilperson Maetzol d that the above-entitled Ordinance be adopted as read and in its entirety. Page 1 of 2. NSP Reference: EDINA-E.MIN. Date Printed: 08/02/95 f ` On roll call the vote was as follows: AYES Councilmembers Maetzold, Kelly, Smith, Paulus and Mayor Richards NAYS none. The Mayor then declared said motion duly carried and the above-entitled Ordinance duly passed and adopted, and ordered the City Clerk to publish the same in accordance with the law in such case made and provided. I DO HEREBY CERTIFY that I am City Clerk of the City of Edina, Hennepin County, Minnesota, and that I am custodian of its records, that the above is a true and correct copy of a part of the minutes of the regu1 a meeting of the City Council of said City held on August 21 , 19 95 City Clerk Page 2 of 2. NSP Reference: EDINA-E.MIN. Date Printed: 08/02/95 ACCEPTANCE OF ORDINANCE NO. 1995-4 CITY OF EDINA,HENNEPIN COUNTY,MINNESOTA ACCEPTANCE OF FRANCHISE: WHEREAS,the City Council of the City of Edina,Hennepin County, Minnesota, introduced Ordinance No. 1995-4 on the 21st day of August,1995,passed and adopted Ordinance No. 1995-4,entitled: AN ORDINANCE GRANTING TO NORTHERN STATES POWER COMPANY, A MINNESOTA CORPORATION, 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 WAYS AND PUBLIC GROUNDS OF THE CITY FOR SUCH PURPOSES. which Ordinance was duly published according to law on the 30th day of August, 1995, in the Edina Sun-Current,a newspaper printed and published in the City of Edina,County of Hennepin,and State of Minnesota,and which Ordinance is not effective unless accepted in writing by Northern States Power Company. NOW THEREFORE,Northern States Power Company,a Minnesota Corporation for itself and its successors and assigns, does hereby accept all the terms and conditions of said Ordinance. IN WITNESS WHEREOF,Northern States Power Company has caused this document to be executed in its corporate name by its duly authorized persons and its corporate seal to be hereto affixed this a9th day of 3 e/ _,19fr Attest: Northern States Power Company L— a-Qo' By _ .4 , Assistant Secretary Vice President,Customer Service