HomeMy WebLinkAboutOrdinance - 20-2012 - CenterPoint Natural Gas Franchise Ordinance - 06/28/2012 CITY OF EDEN PRAIRIE
HENNEPIN COUNTY, MINNESOTA
NATURAL GAS FRANCHISE ORDINANCE
ORDINANCE NO. 20-2012
AN ORDINANCE GRANTING CENTERPOINT ENERGY RESOURCES CORP., d/b/a
CENTERPOINT ENERGY MINNESOTA GAS ("CENTERPOINT ENERGY"), 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 THE PUBLIC WAYS AND
GROUNDS OF THE CITY OF EDEN PRAIRIE, HENNEPIN COUNTY, MINNESOTA,
FOR SUCH PURPOSE; AND, PRESCRIBING CERTAIN TERMS AND CONDITIONS
THEREOF
THE CITY COUNCIL OF THE CITY OF EDEN PRAIRIE, HENNEPIN COUNTY,
MINNESOTA, ORDAINS:
SECTION 1. DEFINITIONS.
For purposes of this Ordinance, the following capitalized terms listed in alphabetical
order shall have the following meanings:
1.1 Cam. The City of Eden Prairie, County of Hennepin, State of Minnesota.
1.2 City Utility System. Facilities used for providing public utility service owned or
operated by City or agency thereof, including sewer, storm sewer, water service, street lighting
and traffic signals, but excluding facilities for providing heating, lighting, or other forms of
energy.
1.3 Commission. The Minnesota Public Utilities Commission, or any successor
agency or agencies, including an agency of the federal government, which preempts all or part of
the authority to regulate gas retail rates now vested in the Minnesota Public Utilities
Commission.
1.4 Company, CenterPoint Energy Resources Corp., d/b/a CenterPoint Energy
Minnesota Gas ("CenterPoint Energy") 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 Gas Energy. Gas Energy includes both retail and wholesale natural,
manufactured or mixed gas.
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1.6 Gas Facilities. Gas transmission and distribution pipes, lines, ducts, fixtures, and
all necessary equipment and appurtenances owned or operated by the Company for the purpose
of providing Gas Energy for retail or wholesale use.
1.7 Notice. A writing served by any party or parties on any other party or parties.
Notice to Company shall be mailed to CenterPoint Energy, Minnesota Division Vice President,
800 LaSalle Avenue, Minneapolis, Minnesota 55402. Notice to the City shall be mailed to City
of Eden Prairie, Administrator, 8080 Mitchell Road, Eden Prairie, MN 55344. Any party may
change its respective address for the purpose of this Ordinance by written Notice to the other
parties.
1.8 Ordinance. This gas franchise ordinance, also referred to as the Franchise.
1.9 Public Way. Any highway, street, alley or other public right-of-way within the
City.
1.10 Public Ground. Land owned or otherwise controlled by the City for utility
easements, park, trail, walkway, open space or other public property, which is held for use in
common by the public or for public benefit.
SECTION 2. ADOPTION OF FRANCHISE.
2.1 Grant of Franchise. City hereby grants Company, for a period of 20 years from
the date this Ordinance is passed and approved by the City, the right to import, manufacture,
distribute and sell Gas Energy for public and private use within and through the limits of the City
as its boundaries now exist or as they may be extended in the future and also the right to
transport Gas Energy through the limits of the City for use outside of the City limits. For these
purposes, Company may construct, operate, repair and maintain Gas Facilities in, on, over, under
and across the Public Ways and Public Grounds, subject to the provisions of this Ordinance.
Company may do all reasonable things necessary or customary to accomplish these purposes,
subject, however, to such reasonable regulations as may be imposed by the City pursuant to a
public right-of-way ordinance or permit requirements adopted consistent with state law.
2.2 Effective Date; Written Acceptance. This Franchise shall be in force and effect
from and after the passage of this Ordinance and publication as required by law and its
acceptance by Company. The City, by Council resolution, may revoke this franchise agreement
if Company does not file a written acceptance with the City within 90 days after publication.
2.3 Service and Gas Rates. The terms and conditions of service and the rates to be
charged by Company for Gas Energy in City are subject to the exclusive jurisdiction of the
Commission.
2.4 Publication Expense. City shall pay the expense of publication of this
Ordinance.
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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.
2.6 Continuation of Franchise. If the City and the Company are unable to agree on
the terms of a new franchise by the time this Franchise expires, this 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 its intention to allow Franchise to expire. However, in no
event shall this Franchise continue for more than one year after expiration of the 20-year term set
forth in Section 2.1.
SECTION 3. LOCATION, OTHER REGULATIONS.
3.1 Location of Facilities. Gas Facilities shall be located, constructed, and
maintained so as not to interfere with the safety and convenience of ordinary travel along and
over Public Ways and so as not to disrupt normal operation of any City Utility System, Gas
Facilities may be located on Public Grounds in a location selected by the City. The location and
relocation of Gas Facilities shall be subject to reasonable regulations of the City consistent with
authority granted the City to manage its Public Ways and Public Grounds under state law, to the
extent not inconsistent with a specific term of this Franchise.
3.2 Street Openings. Company shall not open or disturb the surface of any Public
Way or Public Ground for any purpose without first having obtained a permit from the City, if
required by a separate ordinance, for which the City may impose a reasonable fee, unless the
City is receiving a franchise fee pursuant to this Ordinance, in which case all permit fees will be
waived. Permit conditions imposed on Company shall not be more burdensome than those
imposed on other public-right-of-way users for similar facilities or work. Company may,
however, open and disturb the surface of any Public Way or Public Ground without a permit if
(i) an emergency exists requiring the immediate repair of Gas Facilities and (ii) Company gives
telephone, email or similar Notice to the City before commencement of the emergency repair, if
reasonably possible. Within two business days after commencing the repair, Company shall
apply for any required permits and pay any required fees.
3.3 Restoration. After undertaking any work requiring the opening of any Public
Way or Public Ground, the Company shall restore the Public Ways or Public Grounds in
accordance with Minnesota Rules, 7819.1100. Company shall restore the Public Ground to as
good a condition as formerly existed, and shall maintain the surface in good condition for six
months thereafter. All 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
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material, and put the 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 days, the right to make the restoration of the Public Ways or Public Grounds at the
expense of Company. Company shall pay to the City the cost of such work done for or
performed by the City. The Company shall not be required to post a construction performance
bond.
3.4 Avoid Damage to Gas Facilities. 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
Gas Facilities by persons, property, or the elements. Per Minnesota Statute 216D.05, the City
must take protective measures when it performs work near the Gas Facilities.
3.5 Notice of Improvements to Streets. The City will give Company reasonable
written Notice of plans for improvements to Public Ways and Public Grounds where the City has
reason to believe that Gas Facilities may affect or be affected by the improvement. The Notice
will contain: (i) the nature and character of the improvements, (ii) the Public Ways or Public
Grounds 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 or Public
Grounds is involved, the order in which the work is to proceed. The Notice will be given to
Company a sufficient length of time, considering seasonal working conditions, in advance of the
actual commencement of the work to permit Company to make any additions, alterations or
repairs to its Gas Facilities the Company deems necessary.
3.6 Mapping Information. If requested by City, the Company must promptly
provide complete and accurate mapping information for any of its Gas Facilities in accordance
with the requirements of Minnesota Rules 7819.4000 and 7819.4100.
3.7 Emergency Response. As emergency first-responders, when a public safety
concern exists both the City and Company shall respond to gas emergencies within the City
without additional direct fee or expense to either City or Company.
SECTION 4. RELOCATIONS.
4.1 Relocation in Public Ways and Public Grounds. The Company and City shall
comply with the provisions of Minnesota Rules 7819.3100, with respect to requests for the
Company to relocate Gas Facilities located in either Public Ways or Public Grounds.
4.2 Proiects with Federal Funding. Relocation, removal, or rearrangement of any
Company Gas 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
Sections 161.45 and 161.46.
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SECTION 5. INDEMNIFICATION.
5.1 Indemnity of City. Company shall indemnify and hold the City 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 Gas
Facilities located in the Public Ways and Public Grounds. The City shall not be indemnified for
losses or claims occasioned through its own negligence or otherwise wrongful act or omission
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.
5.2 Defense of City. In the event a suit is brought against the City under
circumstances where this agreement to indemnify applies, Company at its sole cost and expense
shall defend the City in such suit if written Notice thereof is promptly given to Company within
a period wherein Company is not prejudiced by lack of such Notice. If Company is required to
indemnify and defend, it will thereafter have control of such litigation, but Company may not
settle such litigation without the consent of the City, which consent shall not be unreasonably
withheld. This section is not, as to third parties, a waiver of any defense or immunity otherwise
available to the City. 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. 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 Statutes, Chapter 466.
SECTION 6. VACATION OF PUBLIC WAYS AND PUBLIC GROUNDS.
The City shall give Company at least two weeks prior written Notice of a proposed
vacation of a Public Ways or Public Grounds. The City and the Company shall comply with
Minnesota Rules 7819.3100 and Minnesota Rules 7819.3200 with respect to any request for
vacation.
SECTION 7. 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 8. FRANCHISE FEE.
8.1 Form. During the term of the franchise hereby granted, the City may charge the
Company a franchise fee. The Company will administer the collection and payment of franchise
fees to City in lieu of permit fees, or other fees that may otherwise be imposed on the Company
in relation to its operations as a public utility in the City. The franchise fee will be collected on a
flat per meter basis, or by some other method that is mutually acceptable to both City and
Company for each retail customer within the corporate limits of the City. The amount of the fee
collected may differ for each customer class. The City will use a formula that provides a stable
and predictable amount of fees, without placing the Company at a competitive disadvantage.
Such fee shall not exceed any amount that the Company may legally charge to its customers
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prior to payment to the City. If the Company claims that the City required fee formula is
discriminatory or otherwise places the Company at a competitive disadvantage, the Company
will provide a formula that will produce a substantially similar fee amount to the City. If the
City and Company are unable to agree, the disagreement shall be subject to the Dispute
Resolution provisions of this Ordinance.
8.2 Separate Ordinance. The franchise fee shall be imposed by separate ordinance
duly adopted by the City Council. The effective date of the franchise fee ordinance shall be no
less than ninety (90) days after written Notice enclosing a copy of the duly adopted and approved
ordinance has been served upon the Company by Certified mail. The Company is not required to
collect a franchise fee if the terms of the fee agreement are inconsistent with this franchise or
state law, provided the Company notifies the City Council of the same within the ninety (90) day
period.
8.3 Condition of Fee. The separate ordinance imposing the fee shall not be effective
against the Company unless it lawfully imposes a fee of the same or substantially similar amount
on the sale of energy within the City by any other energy supplier, provided that, as to such
supplier, the City has the authority or contractual right to require a franchise fee or similar fee
through an agreed-upon franchise.
8.4 Collection of Fee. The franchise fee shall be payable not less than quarterly
during complete billing months of the period for which payment is to be made. The franchise fee
formula may be changed from time to time, however, the change shall meet the same Notice and
acceptance requirements and the fee may not be changed more often than annually. Such fee
shall not exceed any amount that the Company may legally charge to its customers prior to
payment to the City. Such fee is subject to subsequent reductions to account for uncollectibles
and customer refunds incurred by the Company. The Company shall not be responsible to pay
City fees that Company is unable to collect under Commission rules or order. The Company
agrees to make available for inspection by the City at reasonable times all records necessary to
audit the Company's determination of the franchise fee payments.
8.5 Continuation of Franchise Fee. If this franchise expires and the City and the
Company are unable to agree upon terms of a new franchise, the franchise fee, if any being
imposed by the City at the time this franchise expires, will remain in effect until a new franchise
is agreed upon. However, the franchise fee will not remain in effect for more than one year after
the franchise expires as stated in Section 2.6 of this Franchise. If for any reason the franchise
terminates,the franchise fee will terminate at the same time.
SECTION 9. ABANDONED FACILITIES.
The Company shall comply with Minnesota Statutes, Section 216D.01 et seq. and
Minnesota Rules 7819.3300, as they may be amended from time to time with respect to
abandoned facilities located in Public Ways and Public Grounds. The Company shall maintain
records describing the exact location of all abandoned and retired Gas Facilities within the Public
Ways and Public Grounds, produce such records at the City's request and comply with the
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location requirements of Section 216D.04 with respect to all Gas Facilities, including abandoned
and retired Gas Facilities not located in Public Ways and Public Grounds.
SECTION 10. PROVISIONS OF ORDINANCE.
10.1 Severability. Every section, provision, or part of this Ordinance is declared
separate from every other section, provision, or part; and if any section, provision, or part shall
be held invalid, it shall not affect any other section, provision, or part. Where a provision of any
other City ordinance conflicts with the provisions of this Ordinance, the provisions of this
Ordinance shall prevail.
10.2 Limitation on Applicability. This Ordinance constitutes a franchise agreement
between the City and Company as the only parties. No provisions herein 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 this Ordinance or of any one or more of the terms hereof, or
otherwise give rise to any cause of action in any person not a party hereto.
SECTION 11. AMENDMENT PROCEDURE.
Either party may propose at any time that this Franchise Ordinance be amended.
Franchise Ordinance may be amended at any time by the City passing a subsequent ordinance
declaring the provisions of the amendment, which amendatory ordinance shall become effective
upon the filing of Company's written consent thereto with the City Clerk within 60 days after the
effective date of the amendatory ordinance. If the Company does not consent to the amendment,
the ordinance containing the amendment shall be revoked by City.
FIRST READ at a regular meeting of the City Council of the City of Eden Prairie on the
5th day of June, 2012, and finally read and adopted and ordered published in summary form as
attached hereto at a regular meeting of the City Council of said City on the 19`h day of June,
2012.
ATTEST:
Kat een Porta, City Clerk Nanc
Published in the Eden Prairie News on the 281h day of June, 2012.
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CITY OF EDEN PRAIRIE
HENNEPIN COUNTY, MINNESOTA
SUMMARY OF ORDINANCE 20-2012 (FRANCHISE)
AND
ORDINANCE 21-2012 (FRANCHISE FEE)
AN ORDINANCE (THE FRANCHISE ORDINANCE) GRANTING CENTERPOINT
ENERGY RESOURCES CORP., d/b/a CENTERPOINT ENERGY MINNESOTA GAS
("CENTERPOINT ENERGY"),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 THE PUBLIC WAYS AND GROUNDS OF THE CITY OF EDEN
PRAIRIE, HENNEPIN COUNTY, MINNESOTA, FOR SUCH PURPOSE; AND,
PRESCRIBING CERTAIN TERMS AND CONDITIONS THEREOF
AND
AN ORDINACE (FRANCHISE FEE) IMPLEMENTING A GAS ENERGY FRANCHISE
FEE ON CENTERPOINT ENERGY FOR PROVIDING GAS ENERGY SERVICE
WITHIN THE CITY OF EDEN PRAIRIE
Summaries:
The Franchise Ordinance grants CenterPoint Energy Resources Corp., d/b/a/ CenterPoint
Energy Minnesota Gas ("CenterPoint Energy") a franchise to construct, operate, repair and
maintain facilities and equipment for the transportation, distribution, manufacture and sale of gas
energy in the City of Eden Prairie and to use the public grounds and public ways of the City for
such purposes. The ordinance regulates among other matters the location of facilities, street
openings and restoration obligations. The ordinance further allows the City to impose on the
CenterPoint a franchise fee which CenterPoint will collect from users.
The Franchise Fee Ordinance implements commencing in August, 2012 a gas energy franchise
fee on CenterPoint for providing gas energy within the City. The Franchise Fee schedule is:
Customer Classification Amount per Account per Month ($)
Residential $ 2.50 per month
Firm A $ 3.00 per month
Firm B $ 10.00 per month
Firm C $ 45.00 per month
Small Volume, Dual Fuel A ("SVDF A") $ 45.00 per month
Small Volume, Dual Fuel B ("SVDF B") $ 45.00 per month
Large Volume, Dual Fuel ("LVDF") $ 45.00 per month
Effective Date: The Franchise Ordinance shall be in force and effect from and after passage of
the Franchise Ordinance, its acceptance by CenterPoint and its publication. The Franchise Fee
Ordinance is effective after its publication and ninety (90) days after sending written notice
enclosing a copy of the Franchise Fee Ordinance to CenterPoint by certified mail.
ATTEST:
Ka Teen Porta, City Clerk Na*c -Luke , Mayor
PUBLISHED in the Eden Prairie News on June 28, 2012.
(A full copy of the text of this Ordinance is available from City Clerk.)
Affidavit of Publication
CITY OF EDEN PRAIRIE Southwest Newspapers
HENNEPIN COUNTY,MINNESOTA
cRY OF ORDINANCE 20-2012(FRANCHISE.)AND
ORDINANCE 21-20I2(FRANCHISE FEE) State of Minnesota )
NANCE (THE FRANCHISE ORDINANCE) GRANTING
4T ENERGY RESOURCES CORP.,d/b/a CENTERPOINT )SS,
NESOTA GAS("CENTERPOINT ENERGY"),ITS SUCCES-
;SIGNS„A NONEXCLUSIVE FRANCHISE TO CONSTRUCT, County of Hennepin )
3PAIR AND MAINTAIN FACILITIES AND EQUIPMENT
kNSPORTATION,DISTRIBUTION,MANUFACTURE AND
l ENERGY FOR PUBLIC AND PRIVATE USE AND TO USE
WAYS AND GROUNDS A, THE CITY OF EDEN PRAI Laurie A. Hartmann, being duly sworn, on oath says that she is the authorized agent of the
'IN COUNTY,MINNESOTA,FOR SUCH PURPOSE;AND, g Y Y g
s CERTAIN TERMS AND CONDITIONS THEREOF;AND publisher of the newspaper known as the Eden Prairie News and has full knowledge of the facts
E(FRANCHISE FEE.)IMPLEMENTING A GAS ENERGY herein stated as follows:
^EE ON CENTERPOINT ENERGY FOR PROVIDING GAS
VICE WITHIN THE CITY OF EDEN PRAIRIE. (A)This newspaper has complied with the requirements constituting qualification as a legal
's: newspaper,as provided by Minnesota Statute 331A.02,331A.07,and other applicable laws,as
W_WS)1 jjD,`t v_e grants CenterPoint Energy Resources Corp„ amended.
Point Energy Minnesota Gas("CenterPoint Energy")a fran-
rtatoperate,repair and maintain facilities and equipment B The printed public notice that is attached to this Affidavit and identified as No.��
rtation,distribution,manufacture and sale of gas energy in ( ) P
an Prairie and to use the public grounds and public ways of was published on the date or dates and in the newspaper stated in the attached Notice and said
-h purposes.The ordinance regulates among other matters Notice is hereby incorporated as part of this Affidavit.Said notice was cut from the columns of
facilities,street openings and restoration obligations. The the newspaper specified.Printed below is a copy of the lower case alphabet from A to Z, both
her allows the City to impose on the CenterPoint a franchise inclusive,and is hereby acknowledged as being the kind and size of type used in the composition
terPoint will collect from users. and publication of the Notice:
!hire Fee Ordinance implements commencing in August,
rgy franchise fee on CenterPoint for providing gas energy
g The Franchise Fee schedule is: abcdefghijklnmopgr t vwxyz
5sificaiion Amount per Account rxrMonth(S)
S'_.50 per month ,(-
S 3.00 per moth BY.
$10.00 per month Laurie A.Hartmann
$45.00 per month
Dual Fuel A("SVDF A") S 45.00 per month
Dual Fuel B("SVDF 13") S 45.00 per month Subscribed and sworn before me on
Dual Fuel("INDF") S 45.00 per month
)ate:The FrglIchise Ordinance shall be in force and effect
passage of the FMlebise Ordinance,its acceptance by Cen-
u
I publication.The Fr vW&Fee nce Qrdina is effective after thiJL day of 2012
and ninety(90)days after sending written notice enclosing
tanchise Fee Ordinance to CenterPoint by certified mail.
ikens,Mayor
ileen Porta,City clerk JYMME JEANNE7E BARK
)y of the text of this Ordinance is available from City NOTARY PUBLIC-MINNESOTA
the Eden Prairie News on Thursday, June 28, 2012; No. Not blic MY COMMISSION EXPIRES 01/31/13
RATE INFORMATION
Lowest classified rate paid by commercial users for comparable space...$31.20 per column inch
Maximum rate allowed by law for the above matter...................................$31.20 per column inch
Rate actually charged for the above matter...............................................$12.59 per column inch