HomeMy WebLinkAboutOrdinance - 14-2003 - Center Point Energy (Minnegasco) Franchise - 05/20/2003 CITY OF EDEN PRAIRIE
HENNEPIN COUNTY,MINNESOTA
FRANCHISE ORDINANCE
FOR CENTERPOINT ENERGY 1VIINNEGASCO
ORDINANCE NO. 14-2003
AN ORDINANCE OF THE CITY OF EDEN PRAIRIE, MINNESOTA, AMENDING
CITY CODE CHAPTER 25 GRANTING TO CENTERPOINT ENERGY
MINNEGASCO, A NATURAL GAS UTILITY, A DIVISION OF CENTERPOINT
ENERGY RESOURCES CORP., A DELAWARE CORPORATION, ITS SUCCESSORS
AND ASSIGNS, A NONEXCLUSIVE FRANCHISE TO CONSTRUCT, OPERATE,
REPAIR AND MAINTAIN FACILITIES AND EQUIPMENT FOR THE
TRANSPORTATION, DISTRIBUTION, MANUFACTURE AND SALE OF GAS
ENERGY FOR PUBLIC AND PRIVATE USE AND TO USE PUBLIC WAYS OF THE
CITY FOR SUCH PURPOSES; AND PRESCRIBING CERTAIN TERMS AND
CONDITIONS THEREOF; AND ADOPTING BY REFERENCE CITY CODE
CHAPTER 1 WHICH,AMONG OTHER THINGS, CONTAIN PENALTY PROVISIONS.
THE CITY COUNSEL OF THE CITY OF EDEN PRAIRIE,MINNESOTA ORDAINS:
SECTION 1. DEFINITIONS. For purposes of this Ordinance, the following capitalized terms
shall have the following meanings:
1.1 City. The City of Eden Prairie, 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 the City or agency thereof, including sewer and water
service,but excluding facilities for providing heating 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 that preempts all or part of the
authority to regulate gas retail rates now vested in the Commission.
1.4 Company. CenterPoint Energy Minnegasco, a Division of CenterPoint Energy
Resources Corp., its successors and assigns, including all successors or assigns that own
or operate any part or parts of the Gas Facilities subject to this franchise.
1.5 Effective Date. The date on which the ordinance becomes effective under Section 2.2.
1.6 Gas. Natural gas, manufactured gas, mixture of natural gas and manufactured gas or
other forms of gas energy.
1.7 Gas Facilities. Gas transmission and distribution pipes, mains, lines, ducts, fixtures, and
all necessary facilities, equipment and appurtenances owned, operated or otherwise used
by the Company for the purpose of providing gas energy for public use.
1.8 Non-Betterment Costs. Costs incurred by the Company from relocation, removal or
rearrangement of Gas Facilities that do not result in an improvement to the Facilities.
1.9 Notice. A writing served by a parry or parties on another parry or parties. Notice to
Company must be mailed to:
CenterPoint Energy Minnegasco
V.P. Regulatory&Supply Service
800 LaSalle Avenue
Minneapolis,Minnesota 55402
Notice to City must be mailed to:
City of Eden Prairie
8080 Mitchell Road
Eden Prairie,Minnesota 55344
1.10 Public Way. Any street, alley or other public right-of-way within the City.
SECTION 2. FRANCHISE.
2.1. Grant of Franchise. The City grants the Company, for a period of ten (10) years from
the Effective Date, the right to import, manufacture, transport, distribute and sell Gas for
public and private use within and through the limits of the City. This right includes the
provision of Gas that is (i) manufactured by the Company or its affiliates and delivered
by the Company, (ii) purchased and delivered by the Company or (iii) purchased from
another source by the retail customer and delivered by the Company. For these purposes,
the Company may construct, operate, repair and maintain Gas Facilities in, on, over,
under and across the Public Way subject to the provisions of this ordinance. The
Company may do all things reasonably necessary or customary to accomplish these
purposes, subject to other applicable ordinances, permit requirements and to further
provisions of this ordinance. Two years prior to the expiration of this franchise
agreement, the parties will meet and discuss renewal of this franchise agreement.
2.2. Effective Date. This franchise is effective from and after its acceptance by the
Company. Written acceptance or rejection of the franchise by the Company must be filed
with the City Clerk within ninety (90) days after publication of this ordinance. If
Company does not file a written acceptance with the City within ninety (90) days, or
otherwise places the City on written notice, at any time, that the Company does not
accept all the terms of this franchise, the City Council by resolution may either repeal this
Ordinance or seek its enforcement in a court of competent jurisdiction.
2.3. Non exclusive Franchise. This ordinance does not grant an exclusive franchise.
2.4. Legal Fees. Each party is responsible for its own legal fees incurred related to granting
of this franchise.
2.5. Publication Expense. The expense of publication of this ordinance must be paid by the
Company.
2.6. Default. Dispute Resolution. If the City or Company asserts that the other party is in
default in the performance of any obligation hereunder, the complaining party must
notify the other party in writing of the default and the desired remedy. 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 thirty (30) days after service of the notice,
the parties may jointly select a mediator to facilitate further discussion. The parties will
equally share the fees and expenses of the mediator. If a mediator is not used or if the
parties are unable to resolve the dispute within thirty(30) days after first meeting with the
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.
2.7. Continuation of Franchise. If this franchise expires and the City and the Company are
unable to agree on the terms of a new franchise, the existing franchise will remain in
effect until a new franchise is agreed upon, or until 90 days after the City or the Company
serves written Notice to the other party of their intention to allow the franchise agreement
to expire.
SECTION 3. CONDITIONS OF USE.
3.1. Location of Facilities. Gas Facilities must be located, constructed, installed and
maintained so as not to interfere with the existing City Utility System or the safety and
convenience of ordinary travel along and over Public Ways. The Company's
construction, reconstruction, operation, repair, maintenance and location of Gas Facilities
is subject to all other ordinances and regulation of the City, currently in place, as
modified or developed in the future, as long as there is equal application to other
franchised or non-franchised energy corporations.
3.2. Field Location. Upon request by the City, the company must provide field locations for
any of its Gas Facilities within the period of time required by Minnesota Statute Section
216D.
3.3. Abandoned Facilities. The Company shall comply with City Ordinance, Minnesota
Statute Section 216D.01, et sea., and Minnesota Rules Part 7819.3300, regarding
abandoned facilities. The Company shall maintain records describing the exact location
of all abandoned and retired facilities within the City, produce such records at the City's
request, and comply with the location requirements of Section 216D.04 with respect to all
facilities, including abandoned and retired facilities.
3.4. Permit Required. The Company may not open or disturb the surface of any Public Way
without first having obtained a permit from the City, for which the City may impose a
reasonable fee. The permit conditions imposed on the Company may not be more
burdensome than those imposed on other utilities for similar facilities or work. The
Company may, however open and disturb the surface of any Pubic Way without a permit
if (i) an emergency exists requiring the immediate repair of Gas Facilities and (ii) the
Company gives notice to the city before, if possible, commencement of the emergency
repair. Within two business days after commencing the repair, the Company must apply
for any required permits and pay the required fees.
3.5. Restoration. After completing work requiring the opening of a Public Way, the
Company must restore the same, including paving and its foundation, to the condition
formerly existing and maintain the paved surfaces in good condition for two years
thereafter. The work must be completed as promptly as weather pen-nits. If the
Company does not promptly perform and complete the work, remove all dirt, rubbish,
equipment and material, and restore the Public Way, the City may, after demand to the
Company to cure and the passage of a reasonable period of time not less than five
calendar days following the demand, make the restoration at the expense of the
Company. The Company must pay to the City the cost of such work done for or
performed by the City, including administrative expense and overhead, plus ten percent
of cost and administrative expense. This remedy is in addition to any other remedies
available to the City for noncompliance with this section. The Company shall also post a
construction performance bond consistent with the provisions of Minnesota Rules Part
7819.3000 and 7819.0100, subpart 6.
3.6 Company Protection of Gas Facilities in Public Ways. The Company must take
reasonable measures to prevent the Gas Facilities from causing damage to persons or
property. The Company must take reasonable measures to protect the Gas Facilities from
damage that could be inflicted on the Facilities by persons,property or the elements. The
Company and the City will comply with all applicable laws and codes when performing
work near the Gas Facilities.
3.7 Notice of Improvements. The City must give the Company reasonable notice of plans
for improvements to Public Ways where the City has reason to believe that Gas Facilities
may affect or be affected by the improvement. The notice must contain; (i) the nature
and character of the improvements, (ii) the 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 Way is involved, the order in which the work
is to proceed. The notice must be given to the Company a sufficient length of time in
advance of the actual commencement of the work to permit the Company to make any
necessary additions, alterations, or repairs to its Gas Facilities. If streets are at final width
and grade and the City 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 City
may require the Company to install gas service connections prior to such paving or
resurfacing.
3.8 Mapping Information. The Company must promptly provide complete and accurate
mapping information for any of its gas facilities in accordance with the requirements of
Minnesota Rules Parts 7819.4000 and 7819.4100.
SECTION 4. RELOCATIONS.
4.1 Relocation of Gas Facilities in Public Ways. If the City determines by the proper
exercise of its powers to vacate a Public Way for a City improvement project, or to grade,
regrade or change the alignment of any Public Way, or construct or reconstruct any City
Utility System in any Public Way, the City may order the Company to relocate its Gas
Facilities at the Company's own expense. The City must give the Company sufficient
notice of plans to vacate for a City improvement project, or to grade, re-grade, or change
the alignment of any Public Way or to construct or reconstruct any City Utility System.If
relocation is required because of the extension of a City Utility System to a previously
unserved area, the City may require the Company to make the subsequent relocation at
the Company's expense. Nothing in this ordinance requires the Company to relocate,
remove, replace or reconnect its Facilities at the Company's expense 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 Vacation of Public Ways. The City must give the Company at least two-weeks' Notice
of the proposed vacation of a Public Way. Except where required for a City street or
other improvement project or as otherwise provided in Section 4.1, the Vacation of a
Public Way, after the installation of Gas Facilities, does not deprive the Company of its
rights to operate and maintain the Gas Facilities until the reasonable cost of relocating the
same and the loss and expense resulting from such relocation are first paid to the
Company. In no case, however,will City be liable to Company for failure to specifically
preserve a right-of-way under Minnesota Statutes Section 160.29. The City and
Company shall comply with Minnesota Rules 7819.3200 and applicable ordinances
consistent with law.
4.3 Projects with Federal Funding. Relocation, removal or rearrangement of any Gas
Facilities made necessary because of the extension into or through the City of a federally-
aided highway project shall be governed by the provisions of Minnesota Statutes, Section
161.46.
SECTION 5. DEFENSE AND INDEMNIFICATION.
5.1. Terms. The Company shall indemnify, keep and hold the City, its elected officials,
officers, employees, and agents free and harmless from any and all liability on account of
injury or death of persons or damage to property occasioned by the construction ,
maintenance, repair, inspection, the issuance of permits, or the operation of the Gas
Facilities located in the Public Ways. The City will 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 will 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.
5.2 Litigation. If such a suit is brought against the City under circumstances where the
agreement in this Section 5 to indemnify applies, the Company at its sole cost and
expense will defend the City in such suit if Notice thereof is promptly given to the
Company within a reasonable period. 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 will 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 is entitled to assert in any action every defense or immunity that the City could
assert in its own behalf.
SECTION 6. 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 7. FRANCHISE FEE.
The City reserves all rights under Minn. Stat. §216B.36 to require a franchise fee at any time
during the term of this franchise. If the City elects to require a franchise fee, it must notify
Company and attempt in good faith to negotiate a mutually acceptable fee agreement. If an
agreement is reached, it must be set forth in a separate ordinance and not adopted until at least 60
days after Notice enclosing the proposed ordinance has been served upon the Company by
certified mail. If the City and Company do not reach an agreement, each hereby consents to the
jurisdiction of the District Court in Hennepin County to construe their respective rights under the
law, subject to all rights of appeal.
SECTION 8. LIMITATION ON APPLICABILITY.
8.1 Limitations on Applicability. This Ordinance constitutes a franchise agreement
between the City and the Company. No provision of this franchise inures 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 for any person not a party hereto.
8.2 Waiver. This Franchise Agreement shall not be interpreted to constitute a waiver by the
City of any of its defenses of immunity or limitations on liability under Minnesota Statute
Chapter 466.
SECTION 9. PREVIOUS FRANCHISES SUPERSEDED.
This franchise supersedes and replaces previous franchises granted to the Company or its
predecessors.
SECTION 10. AMENDMENTS.
This ordinance may be amended at any time by the City. An amendatory ordinance becomes
effective upon the filing of the Company's written consent thereto with the city clerk within 90
days after adoption.
SECTION 11. SEVERABILITY.
If any portion of this franchise is found unenforceable for any reason, the validity of the
remaining provisions will not be affected.
SECTION 12. GENERAL CITY CODE PROVISIONS.
City Code Chapter 1 entitled "General Provisions and Definitions Applicable to the Entire City
Code, Including Penalty for Violation" is hereby adopted in its entirety by reference as though
repeated verbatim herein.
FIRST READ at a regular meeting of the City Council of the City of Eden Prairie on the 6th day
of May,2003, and finally read and adopted and ordered at a regular meeting of the City Council
of said City on the 20th day of May,2003.
Ka een Porta, City Clerk an yra- ayor
PUBLISHED in the Eden Prairie Sun Current on the a day of ' 2003.
CITY OF EDEN PRAIRIE
HENNEPIN COUNTY,AHNNESOTA
SUMMARY OF ORDINANCE NO. 14-2003
AN ORDINANCE OF THE CITY OF EDEN PRAIRIE, MINNESOTA,
AMENDING CITY CODE CHAPTER 25 GRANTING TO CENTERPOINT
ENERGY MINNEGASCO, A NATURAL GAS UTILITY, A DIVISION OF
CENTERPOINT ENERGY RESOURCES CORP., A DELAWARE
CORPORATION, ITS SUCCESSORS AND ASSIGNS, A
NONEXCLUSIVE FRANCHISE TO CONSTRUCT, OPERATE, REPAIR
AND MAINTAIN FACILITIES AND EQUIPMENT FOR THE
TRANSPORTATION, DISTRIBUTION, MANUFACTURE AND SALE OF
GAS ENERGY FOR PUBLIC AND PRIVATE USE AND TO USE PUBLIC
WAYS OF THE CITY FOR SUCH PURPOSES; AND PRESCRIBING
CERTAIN TERMS AND CONDITIONS THEREOF; AND ADOPTING BY
REFERENCE CITY CODE CHAPTER 1 WHICH, AMONG OTHER
THINGS, CONTAINS PENALTY PROVISIONS.
The following is only a summary of Ordinance No. 14-2003. The full text is available for
public inspection by any person during regular office hours at the office of the City Clerk.
The purpose of the amendment and the new section is to grant CenterPoint Energy
Minnegasco, a natural gas utility, a nonexclusive franchise. Through this Ordinance, the City
grants CenterPoint Energy Minnegasco, for a period of ten (10) years, the right to import,
manufacture, transport, distribute and sell gas for public and private use within and through the
limits of the City. The Ordinance establishes standards for the location of gas facilities and
requires reasonable measures be taken to prevent gas facilities from causing damage to persons
or property. In addition, the Ordinance requires CenterPointe Energy to obtain a permit from the
City before opening or disturbing surfaces of any street, alley, or other public right-of-way
within the City and restoration of the public right-of-way after the work is complete. The
Ordinance incorporates, by reference, City Code Chapter 1 which contains definitions and
provisions relating to penalties.
Effective Date. This Ordinance shall take effect upon publication
ATTEST:
Kathleen orta, City Clerk cy a-L s,
PUBLISHED in the Eden Prairie Sun Current on V& 'x J .
city Of am hair1C
(odfiew P.H:eafie l
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apers C•AX ffiINNES07A,AMTO CEN MMOINT
CIfAPTSR.86 GRANTNNG'PO C�CN'I�OiN'T
ENERGY M@4HRGA9M A NA2TJRAL GAS
U`IUMAAFFIDAVIT OF PUBLICATION 0 CORR AARE
CORPORATNON,rl8 SLTOCS89ORS AND
ASSIGNS,A NONEXCLUSIVE FRANCHISE TO
STATE OF MINNESOTA) CONSTRUCTAFACILITIES
AND MAINTAIN
TRANSPORTATION,DISTRIBUTION,
SS. MANUFACTURE AND SALE OF GAS ENERGY
FOR PUBLIC AND PRIVATE USE AND TO USE
COUNTY OF HENNEPIN) PURPOSCE AANNDPPREESSCRIBINGCE FOR RTAIN
TERMS AND CONDITIONS THEREOF,AND
Richard Hendrickson, being duly sworn on an oath states or affirms, that he is the Chief CHAPTEROPTINGBYR FEEREAMONCEC CITY
ODE
Financial Officer of the newspaper known as Sun-Current , and has full CONTAINS PENALTY PROVISIONS.
The following is only a summary of Ordinance No.14-2003.
of the facts stated below: on during regular office h full text is available forours at thublic e office otion f the per-
knowledge any City
,
(A)The newspaper has complied with all of the requirements constituting qualification as a Clerk.
The purpose of the amendment and the new section is to
qualified newspaper, as provided by Minn. Stat. §331A.02 §331A.07 and other applicable gy,anorant exclusmefranc yMmhroug thisOuralgae,t e
, > > ity,a nonexclusive franchise.Through this Ordinance,the
City grants CenterPoint Energy Minnegasco,for a period
laws,as amended. often(10)years,the right to import,manufacture,trans-
port,distribute and sell gas for public and private use
(B �)The printed public notice that is attached was published in the newspaper once each week within and through the limits of the of gay. s
fa Ordinance
establishes standards for the location of facilities and
requires reasonable measures be taken to prevent gas fa-
for one successive weeks; it was first published on Thursday, the 29 day of cilities from causing damage to persons or property.In ad-
dition,the Ordinance requires CenterPointe Energy to ob-
tain a permit from the City before opening or disturbing
May , 2003, and was thereafter printed and published on every Thursday to and surfaces of any street,alley,or other public right-of-way
within the City and restoration of the public righti_of-way
including Thursday,the day of ,2003;and printed below is a copy of the after the work is complete.The Ordinance incorporates,by
reference,City Code Chapter 1 which contains definitions
lower case alphabet from A to Z, both inclusive,which is hereby acknowledged as being the and provisions relating to penalties.
Effective Date.This Ordinance shall take effect upon pub-
size and kind of type used in the composition andyubli theonotice: location
�/ Nancy Tyra-Lukens,Mayor
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Attest: Kathleen Ponta,City Clerk
BY: Notice of this public hearing published in the SUN CUR-
RENT on May 29,2003.
CFO (A hill copy of the text of this Ordinance is available from
City Clerk.)
(May 29,2003)D410rd 14-2003
Subscribed and swor t or affirme before me
o this day of ,20._03.
L)
NotatyP a
MERIDEL M.HEDBLO
1 (` NOTARY PUBLIC•MINNESOTA
MYCOMMISSION EXPIRES 1.31.20 5
■ ■
RATE INFORMATION
(1)Lowest classified rate paid by commercial users $ 2.85 per line
for comparable space
(2) Maximum rate allowed by law $ 6.20 per line
(3) Rate actually charged $ 1.40 per line