HomeMy WebLinkAboutOrdinance - 32-92 - Granting Franchise to NSP - 09/01/1992 CITY OF EDEN PRAIRIE, HENNEPIN COUNTY, MINNESOTA
ORDINANCE NO. 32-92
AN ORDINANCE GRANTING TO NORTHERN STATES POWER COMPANY, A
MINNESOTA CORPORATION, ITS SUCCESSORS AND ASSIGNS, PERNIISSION TO
CONSTRUCT, OPERATE, REPAIR AND MAINTAIN IN THE CITY OF EDEN
PRAIRIE, 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 OF THE CITY
FOR SUCH PURPOSES.
THE CITY COUNCIL OF THE CITY OF EDEN PRAIRIE, HENNEPIN COUNTY,
MINNESOTA, DOES ORDAIN:
SECTION 1. DEFINITIONS.
1.1. "City Utility System" means the facilities used for providing sewer, water, storm sewer,
or any other municipal utility service owned or operated by City or agency thereof.
1.2. "Company" means Northern States Power Company, a Minnesota corporation, its
successors and assigns.
1.3. "Notice" means a writing served by any party or parties on any other parry or parties.
Notice to Company shall be mailed to the Area Manager thereof at
5505 County Road 19, Shorewood, Minnesota, 55387. Notice to City shall be mailed to the City
Clerk.
1.4. "Public Way" means any street, alley, or other public right-of-way within the City.
1.5. "Public Ground" means land owned by the City for park, open space or other purpose,
which is held for use in common by the public including Public Ways located within Public
Grounds.
1.6. 'Electric Facilities" means electric transmission and distribution towers, poles, lines,
guys, anchors, ducts, fixtures, and necessary appurtenances owned or operated by the Company
for the purpose of providing electric energy for public use.
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SECTION 2. GRANT OF FRANCHISE.
2.1 Grant of Franchise. City hereby grants Company,for a period of 20 years from the
effective date of this Ordinance, 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 City as its
boundaries now exist or as they may be extended in the future, subject to the terms and
conditions contained herein. For these purposes, Company may construct, operate, repair and
maintain Electric Facilities in, on, over, under and across the Public Ways and such Public
Grounds 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 zoning
ordinances, other applicable ordinances, permit procedures, and to the further provisions of this
franchise.
2.2 Effective Date Written Acceptance. This franchise shall be in force and effect from
and after its passage and acceptance by the Company, and its publication as required by law.
An acceptance by Company must be filed with the City Clerk within 90 days after publication.
2.3 Service Rates. The service to be provided and the rates to be charged by Company
for electric service in City currently are subject to the jurisdiction of the Minnesota Public
Utilities Commission.
SECTION 3. RESTRICTIONS
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 Ground only as determined in its sole discretion by City.
Company's construction, reconstruction, operation, repair, maintenance and location of Electric
Facilities shall be subject to other reasonable regulations of City.
3.2 Field Locations of Facilities. Company shall provide field locations for any of its
underground Electric Facilities within a reasonable period of time on request by City. The period
of time will be considered reasonable if it compares favorably with the average time required by
the cities in the same county to locate municipal underground facilities for Company.
3.3 Street Openings. 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 City, 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 the paved surface of any Public Way or Public Ground
without permission from City where an emergency exists requiring the immediate repair of
Electric Facilities. In such event Company shall notify City by telephone through the office
designated by City before opening or disturbing a paved surface of a Public Way or Public
Ground. Not later than the second working day thereafter, Company shall obtain any required
permits and pay any required fees.
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3.4 Restoration. After undertaking any work requiring the opening of any Public Way
or Public Ground, 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 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 Company to cure and the passage of a reasonable period of time following the demand, but
not to exceed five (5) days, the right to make the restoration at the expense of Company.
Company shall pay to City the cost of such work done for or performed by City, including its
administrative expense and overhead, plus ten percent (10%) additional as liquidated damages.
This remedy shall be in addition to any other remedy available to City.
3.5 Shared 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, City shall pay for any added cost incurred by Company because of such use by City.
SECTION 4. TREE TRD4NHNG
Company may trim all trees and shrubs in the Public Ways and Public Ground of City
interfering with the proper construction, operation, repair and maintenance of any Electric
Facilities installed hereunder, provided that Company shall save City harmless from any liability
arising therefrom, and subject to permit or other reasonable regulation by City.
SECTION 5. RELOCATIONS
5.1 Relocation of Electric Facilities in Public Ways. Except as provided in Section
5.3, if City determines to vacate for a City improvement project, or to grade, regrade, or change
the line or the use of any Public Way or part thereof, or construct or reconstruct any City Utility
System in any Public Way, it may order the Company, upon reasonable notice, to relocate its
Electric Facilities located therein. Company shall relocate its Electric Facilities at its own
expense. 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, City shall
reimburse 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 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.
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5.2 Relocation of Electric Facilities in Public Grounds. Except as may be provided
in Section 5.3, City may require Company to relocate or remove its Electric Facilities from
Public Ground upon a fording by City that the Electric Facilities have become or will become
an 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 5.2 apply only to Electric
Facilities constructed in reliance on a franchise and Company does not waive its rights under an
easement or prescriptive right.
5.3 Proiects With State or Federal Funding. Relocation, removal, or rearrangement
of any Company Electric Facilities made necessary because of the extension into or through of
a federally-aided highway project shall be governed by the provisions of Minn. Stat. §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 expense resulting therefrom are first paid to Company, but City need not pay those
portions of such for which reimbursement to it is not available.
5.4 Liability 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.
SECTION 6. INDEMNIFICATION.
6.1 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 City. City shall not be indemnified for losses or claims arising out of its own
negligence, except for losses or claims arising out of or alleging City's negligence as to the
issuance of permits for, or inspection of, Company's plans or work. 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, Company at its sole cost and expense shall defend City in such
suit if written notice thereof is given 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 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 City; and Company, in
defending any action on behalf of City shall be entitled to assert in any action every defense or
immunity that City could assert on its own behalf.
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SECTION 7. VACATION OF PUBLIC WAYS.
City shall give Company at least two (2) weeks prior written notice of a proposed
vacation of a Public Way. Except where required for a City street or other improvement project
as provided in Section 5, 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 Minn. Stat. §160.29.
SECTION 8. FRANCHISE FEE.
8.1 Separate Ordinance. During the term of the franchise hereby granted, and in lieu
of any permit or other fees being imposed on Company, City may impose on Company a
franchise fee of not more than five percent of Company's gross revenues as hereinafter defined.
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 10.2 shall constitute the sole remedy for solving
disputes between Company and City in regard to the interpretation of, or enforcement of the
separate ordinance. A separate ordinance which does not impose a uniform fee on all revenues
within the definition of gross revenues shall not be effective against the Company.
8.2 Terms Defined. The term "gross revenues"means all sums,excluding any surcharge
or similar addition to Company's charges to customers for the purpose of reimbursing Company
for the cost resulting from the franchise fee, received by Company from the sale of electricity
to its retail customers within the corporate limits of the City.
8.3 Collection of the Fee. The franchise fee shall be payable not less often than
quarterly, and shall be based on the gross revenues of Company during complete billing months
during the period for which payment is to be made. The payment shall be due the last business
day of the month following the period for which the payment is made. The percent fee may be
changed by ordinance from time to time; however, each change shall meet the same notice
requirements and the percentage may not be changed more often than annually. Such fee shall
not exceed any amount which Company may legally charge to its customers prior to payment to
the City by imposing a surcharge equivalent to such fee in its rates for electric service. Company
may pay City the fee based upon the surcharge billed subject to subsequent reductions to account
for uncollectible or customer refunds. The time and manner of collecting the franchise fee is
subject to the approval of the Public Utilities Commission, which Company agrees to use best
efforts to obtain. Company agrees to make its gross revenues records available for inspection
by City at reasonable times.
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• 8.4 Conditions on 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 percentage on the receipts from sales or 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 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.
SECTION 9. CHANGE IN FORM OF GOVERNMENT.
Any change in the form of government of City shall not affect the validity of this
Ordinance. Any governmental unit succeeding City shall, without the consent of Company,
succeed to all of the rights and obligations of City provided in this Ordinance.
SECTION 10. PROVISIONS OF ORDINANCE.
10.1 Severability. If any portion of this franchise is found to be invalid for any reason
whatsoever, the validity of the remainder shall not be affected.
10.2 Default. If either parry asserts that the other party is in default in 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. If the dispute is not resolved within 30
days of the written notice, 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.
10.3 No Third Party Benefit. This Ordinance constitutes a franchise agreement between
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 parry hereto.
10.4 Amendment. This Ordinance may be amended at any time by 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 effective date of the amendatory Ordinance.
SECTION 11. PUBLICATION EXPENSE
The expense of publication of this franchise Ordinance shall be paid by Company.
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SECTION 12.
This Ordinance shall become effective from and after its passage and publication.
FIRST READ at a regular meeting of the City Council of the City of Eden Prairie on the
lstday of September , 199.3 and finally read and adop d ordere ublished at a regular
meeting of the City Council of said City on thelSth day f S tember 1992.
t
Douglas B%tenpas, Mayor
ATTEST:
ArLane, City Clerk
PUBLISHED in the Eden Prairie News on the J142L day of 4e� , 1992.
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CITY OF EDEN PRAIRIE,
HENNEPIN COUNTY,MINNESOTA
ORDINANCE NO.32-92
AN ORDINANCE GRANTING TO
NORTHM STATES POWER COM-
PANY, A MINNE.SOTA CORPORA-
TION, ITS SUCCESSORS AND AS-
SIGNS, PERMISSION TO CON-
S'MUCF, OPERATE, REPAIR AND
MAINTAIN IN THE CITY OF EDEN
PRAIRIE, MlIQM TA, AN ELEC-
TRIC DISTRIBUTION SYSTEM AND
TRANSMISSION LINES,INCLUDING
NECESSARY POLES, LINES, FIX-
TURES AND APPURTENANCES,FOR
THE FURNISHING OF ELECTRIC
ENERGY TO THE CITY,Y,ITS INHABI-
TANTS,AND OTHERS,AND TO USE Affidavit of Publication
THE PUBIC WAYS OF THE my
FOR rRPOSE.s.
TIMMYOOUNCII.OFTHE CITY Southwest Suburban Publishing
THE CTIY
OF EDEN PRAIRIE, HENNEPIN
COUNTY, MINNE:SO TA, DOES OR-
DAIN:
SECTION I.DEFINNIIIONS. State Of Minnesota )
1.1.-cityUtility S • m"meansthc
fadlities used fiat providing sewer,water, )SS.
storm sewer,or any other municipal util-
ity service owned or operated by city on y
asencythereof.
1.2. "Cot�pany" means Northern Stan Rolfsrud,being duly sworn,on oath says that he is the authorized agent of the publisher of the
States Powea Compaaey, a Imesota newspaper known as the Eden Prairie News and has full knowledge of the facts herein stated as follows:
corporation,its succomm and '
1.3."Notice"means a writing served (A)This newspaper has complied with the requirements constituting qualification as a legal newspaper,
by any party or parties on any other party as provided by Minnesota Statute 331A.02,331A.07,and other applicable laws,as amended.
orparties, n
Notice to Company shall be mailed to (B)The printed public notice that is attached to this Affidavit and identified as No. / ,was
the Area Manager thereof at published on the date or dates and in the newspaper stated in the attached Notice,and said Notice is
5505 County Road 19,Shorewood, hereby incorporated as part of this affidavit. Said notice was cut from the columns of the newspaper
MinIM20 a,55387.Notice to City shall be specified.Printed below is a copy of the lower case alphabet from A to Z,both inclusive,and is hereby
maned to the City Clerk. acknowledged as being the kind and size of type used in the cttanRo
publication of the Notice:
1.4."Public Way"means any street,
alley,or other public right-of-way within abcdefghijklmnopgrstuv /
the City.
1.5. "Public Ground" means land
owned by the City for park,open space or
other purpose,which is held for use in By:
common y the public including Public fsrud, eral Manager
Ways located within Public Grounds.
1.6."Electric Facilities"means elec-
trictransmission anddistributionlowera, Subscribed and sworn before me on
tans!or
atl-sIr _p
this f day of 4/_,1992
use. '- -
SBCTION 2 GRANT OF FRAN- f
CHISE. !1`
2.1 Grant of Franchise.City hereby NotaryPublic
iixants Company,for a period of 20 years
m the effective date of this ordinance,
the right to transmit and furnish electric
energy for light,heat,power and other RATE INFORMATION
rrppoa�seess for public and p 'v to use within
au�idthroxrgh ttre limits of(ifya�its>aoum Lowest classified rate paid by commercial users for comparable space ........ $13.50 per column inch
ADS now exist or as they maybe extended Maximum rate allowed by law for the above matter ....................................$13.50 per column inch
in the future, subject to the terms and -Rate actually charged for the above matter....................................................$6.13 per column inch
conditions contained herein. For these
purposes,Company may construct,oper-
ate,repair and maintain Electric Facilities
in,an,over,under and acmes the Public
Ways and such Public Grounds of Cityy,
subject to the provisions of this Ord-
nance.Company may do all reasonable
things necessary or customary to aoeom-
plis these puposes,subject,however,to
Zoning ordinances,other applicable ordi-
nances, permit procedures, and to the
further provisions of this franchise.
2.2 Effective Date Written Accep-
tance.This franchise shall be in fora and
eaw fionfaw agar ib PAUIV and so-
aP by the Cttpany.and its publi-
catroa as requiredby Iaw�.An a e er mc.
by Company must be tiled with the Caty aruruN 4.'1 x_H'1 xtMMlNU sonable care to avoid damaging Electric
Clerk within 9"ays;ftej publication. Company may trim all trees and shnibe Facilities while performing any activity.
2.3 Service Rates.The service to be in the Public Ways and Public Ground of SECTION 6.INDEMNIFICATION.
provided and the rates to be charged by City interferingwrththeproperconstruc- 6.1 Company shall indemnify,
Company for electric service in City cur- lion,operation,repair and maWmance Of and hold the City free and harmless from rentiy are subject to the jurisdiction of the any Electric Facilities installed hereun- any and all liability on account of injury to
Minnesota Public Utilities Commission. der,provided that Company shall save persons or damage to property occasioned
SECTION 3.RESTRICTIONS City harmless from any liability arising by the construction,maintenance,repair,
3.1 Location of Facilities. Electric therefrom,and subject to permit or other inspection,the issuance of permits,or the
Facilities shall be located and constructed reasonable regulation by City. operaion of the Electric Facilities located
so as not to interfere with the safety and SECTION 5.RELOCATIONS in City.City shall not be indemnified for
convenience of ordinary travel along and 5.1 Relocation of Electric Facilities in losses or claims arising out of its own
over Public Ways,and they shall be lo- Public Ways.Except as provided in Sec- negligence, except for losses or claims
cated on Public Ground only as deter- tion 5.3,if City determines to vacate for a arising out of or alleging City's negli-
mined in its sole discretion by City. City improvement project,or to grade, Bence as to the issuance of permits for,or
Company's construction,reconstruction, regrade,or change the line or the use of inspection of,Company's plans or work.
operation,repair,maintenance and loca- any Public Way or part tbereof,or con- Citysball not be indemnified if the injury
tion of Electric Facilities shall be subject structorreconatruct any City Utility Sys- or damage results from the performance
to other reasonable regulations of City. rem in any Public Way,it may order the in
a proper manner of acts reasonably
3.2 Field Locations of Facilities. Company,upon reasonable notice,to re- deemed hazardous by Company,and such
Company shall provide field locations for locate its Electric Facilities located therein. performance is nevertheless ordered or
any of its underground Electric Facilities �pany shall relocate its Eleetrie Facili- directed by City after notice of Com-
within a reasonable period of time on ties at its own expense.City shall give the pany'sdetermination.
inquest by City.The period of time will be Company reasonable notice of plans to 6.2 In the event a suit is fight against
considered reasonable if it compares fa- vacatefora City improvementprolect,or the City under circumstances where this
vorably with the average time required by to grade,regr2de,or change the line of any agreement to indemnify applies, Com-
the cities in the same county to locate Public Way or to construct or reconstnxt pany at its sole cost and expense shall
municipal underground facilities for any City Utility System.If a relocation is defend City in such suit if written notice
Company. ordered within five years of a prior reloca- thereof is iven Companywithin aperiod
3.3 Street Openings.Company shall tim of the same Electrical Facilities,which wherein Company is not prejudiced b
not open or disturb the paved surface of was made at Company ems,City shall lack of such notice. If Company is re-
any Public Way or Public Ground for any reimburse Company for non-betterment quired to indemnify and defend,it win
purpose without first having obtained expenses on a time and material basis, thereafter have control of such litigation,
permission from City,for which the City provided that if a subsequent relocation is but Company may not settle such litiga-
may impose a reasonable fee. Permit required because of the extension of a tion without the consent of City,which
conditions imposed on Company shall City Utility System to a previously unsex- consent shall not be unreasonably with-
not be more burdensome than those im- ved area,Company may be required to held.This section is not,as to third nwtie&
posed on other utilities for similar facili- make the subsequent relocation at its a waiver of any defense or immunity oth-
ties or work. Company may, however, expense.Nothing in this Ordinance re- erwise available to City;and Company,in
open and disturb the paved surface of any 8EE��
emove, defending any action on behalf of City
Public Way or Public Ground without shall be entitled to assert in any action
permission from City where an emergency moval, every defense or immunity that City could
exists requiring the immediate repair of replacement or reconstruction is solely assert on its own behalf.
Electric Facilities. In such event Com- for the convenience of the City and is not SECTION 7.VACATION OF PUB-
pany shall notify City by telephone through reasonably necessary iron the comteuction LIC WAYS.
the office designated by City before open- or reconstruction of a Public Way or City City shall give Company at least two
pro-
in or disturbing a paved surface of a Utility System or other City improve- (2)weeks prior written notice of a pro-
Public Way or Public Ground.Not later ment. posed vacation of a Public Way.Except
than the second working day thereafter, 5.2 Relocation of Electric Facilities in where required for a City street or other
Company shall obtain any required per- Public Grounds.Except as may be pro- improvement project as provided in Sec-
mits and pay any required fees. vided in Section 5.3, City may require tion 5,the vacation of any Public Way,
3.4 Restoration.After undertaking any Company to relocate or remove its Elec- after the installation of Electric Facilities,
work requiring the opening of any Public tric Facilities from Public Ground upon a shall not operate to deprive Company of
Way or Public Ground,Company shall finding by City that the Electric Facilities its rights to operate and maintain such
restore the same,including paving and its have become or will become an impair- Electric Facilities, until the reasonable
foundation,to as good condition as for- ment ofthepublicusetowhichthe Public cost of relocating the same and the loss
medy existed,and shall maintain the same Ground is or will be pit The relocation or and expense resulting from such reloca-
in good condition for two years thereafter• removal shall be at the Company's ex- tion are first paid to Company.In no case,
The work shall be completed as promptly pense.The provisions of 5.2 apply only to however,shall City be liable to Company
as weather permits,and if Company shall Electric Facilities constructed in reliance for failure to specifically preserve a right-
not promptly perform and complete the on a franchise and Company does not of-way,under Minn.Stat.160.29.
work,remove all dirt,rubbish,equipment waive its rights under an easement or SECTION 8.FRANCHISE FEE.
and material,and put the Public Way or prescriptive right. 8.1 Separate Ordinance.During the
Public Ground in the said condition,the 5.3 Projects With State or Federal term of the franchise hereby granted,and
City shall have,after demand to Company Funding. Relocation, removal, or rear- in lieu of any permit or other fees being
to cure and the passage of a reasonable rangement of any Company Electric Fa- imposed on Company,City may impose
period of time following the demand,but cilities made necessary because of the on Company a franchise fee of not more
not to exceed five(5)days,the right to extension into or through of a federally- than five percent of Company's gross
make the restoration at the expense of aided highway project shall be governed revenues as hereinafter defined The fran-
Company.Company shall pay to City the by the provisions of Minn.Stat.161.46 as chise fee shall be imposed by a separate
cost of such work done for or performed supplemented or amended.It is under- ordinance duly adopted by the City Coun-
by City,including its administrative ex- stood that the right herein granted to cil,which ordinance shall not be adopted
prose and overhead,plus ten percent(10%) Company is a valuable right.City shall until at least 60 days after written notice
additional as liquidated damages. This not order Company to remove or relocate enclosing such proposed ordinance has
remedy shall be in addition to any other its facilities when a Public Way is va- been served upon Company by certified
remedy available to City. cated,improved orrealignedbecause of a mail.The fa shall not become effective
3.5 Shared Use of Poles.Company renewal or a redevelopment plan which is until at least 60 days after written notice
shall make space available on its poles or financially subsidized in whole or in part enclosing such adopted ordmance has been
towers for City fire,water,utility,police by the Federal Government or any agency served upon Company by certified mail.
or other City facilities wheneversuch use thereof,unless the expense resulting there- Section 10.2 shall constitute the sole remedy
will not interfere with the use of such from are first paid to Company,but City for solving disputes between Compan
poles or towers by Company,by another need not pay those portions of such for and City in regard to the interpretation of,
electric utility,by a telephone utility,or by which reimbursement to it is not avail- or enforcement of the separate ordinance.
any cable television company or other able. A separate ordinance which does not
form of communication company. In 5.4 Liability. Nothing in this Ordi- impose a uniform fee on all revenues
addition,City shall pay for my added cost nance relieves any person from liability within the definition of gross revenues
iaauned by _Y bOcmm Ofsuch use arising out of the failure to exercise rea- shall not be effective against the Com-
by Citv. psny.
8.2 Terms Defined.The term"gross 10.3 No Third P Benefit. This
revenues"means all sums,excluding any arty
surcharge or similar addition to Com- Ordinance constitutes a franchise agree-
pany's char to customers for the pur- went between City and Company as the
1�of rem • CM for the cost only parties and no provision of this fran-
resultmg from the francluae fee,received chile shall in any way inure to the benefit
by Company from the sale of electricity to of any third person(including the public
its customers within the corporate at large)so as to constitute any such per-
limits of the City. son as a third party beneficiary of the
8.3 Collection of the Fee.The fran- agreement or of any one or more of the
chile fee shall be payable not less often terms or otherwise give rise to any
than quarterly,and shall be based on the cause of action in any person not a party
gross revenues of Company during com-
plete billing months during the period for 10.4 Amendment.This Ordinance may
which payment is to be made.The pay- be amended at any time by City passing a
ment shall be due the last business day of subsequent Ordinance declaring the pro-
the month following the period for which visions of the amendment which amenda-
the fee tory Ordinance shall became e�cnxive Won
be cchhan�ged by ordinance percent time tothe wing of!�bTpany's written consent
time;however,each chmp shall meet the thereto with the City C]erk within 90 days
same notice requirements and the per- after the effective date of the amendatory
tentage may not be changed more often Ordinance.
than annually.Such fee shall not exceed SECTION 11. PUBLICATION
any amount which Company may legally, EXPENSE
char to its customers prior to payment The expense of publication of this
�� franmcphise Ordinance shall be paid by
feat to�t fan n its ratan Lor elecaic Company.
12.
service.Company may pay City the fee This Ordinance shall become effec-
bated the Wed bo tive from and after its passage and publi-
reAwtiows to 41cowi°t cation.
u°0o �I at aastomer rem'Tk FIRST READ at a regular meeting of
time and manner of collecting the flan- the City Council of the City of Eden
chile fee is subject to the approval of the Pry on the 1st day of September,1992,
Public Utilities Commission, which and finally read and adopted and ordered
Company
�s to maloe ite to published at a regular meeting of the City
obt ��y � Council otsaid City on thel5th day of
revenues records available for inspection September,1992.
by City at reasonable times. Douglas B.Tenpas,Mayor
8.4 Conditions on the Fee.The sepa- AST,
rats ordinance imposing the fee shall not John D.Frane
be effective against the company unless it City Clerk
lawfully imposes and the City quarterly or (published in the Eden Prairie News,
more often collects a fee or tax of the a ursday,October 1,1992;No.6587)
or greater percentage on the receipts from
sales or 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 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 rem machinery and appliances on prem-
ises located within or adj scent to the City,
but shall not apply to energy sales for the
purpose of providing Biel for vehicles.
SECTION 9. CHANGE IN FORM
OF GOVERNMENT.
Ail change in the form of govern-
ment of City shall not affect the validity of
this Ordinance.Any governmental unit
succeeding City shall,without the con-
sent of Company,succeed to all of the
rights and obligations of City provided in\
this Ordinance.
SECTION 10. PROVISIONS OF
ORDINANCE.
10.1 Severability,If any portion of
this franchise is found to be invalid for any
reason whatsoever, the validity of the
remainder shall not be affected.
10.2 Default.If either party asserts
that the other party is in default in per-
formance of any obligation hereunder,the
complaining party shall notify the other
party of the default and the desired rem-
edy.The notification shall be written.If
the dispute is not resolved within 30 days
of the written notice, 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�m�otigion
permitted by law,