HomeMy WebLinkAboutCity Council Ordinance 1989-40SRA UNIFORM ELECTRIC FRANCHISE
ORDINANCE NO. 89-40
CITY OF PLYMOUTH, HENNEPIN COUNTY
MINNESOTA
AN ORDINANCE/ GRANTING TO_WRIGHT-HENNEPIN.;000PERATIVE
ELECTRIC ASSOCIATION, S MINNESOTA. CORPORATION, ITS
SUCCESSORS AND ASSIGNS, PERMISSION TO
CONSTRUCT, OPERATE, REPAIR AND MAINTAIN IN
THE CITY OF PLYMOUTH, 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 PUBLIC WAYS AND PUBLIC
GROUNDS OF THE CITY FOR SUCH PURPOSES.
The City Council of the City of Plymouth does ordain:
SECTION 1. DEFINITIONS
1.1 "City" In this Ordinance, "City" means the City of
Plymouth, 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 "Company" means aright -Hennepin Cooperative Electric
Association, a Minnesota corporation, its successors and assigns.
1.4 "Notice" means a writing served by any party or parties
on any other party or parties. Notice to Company shall be mailed
to the Division General Manager thereof at P.O. Box 330, Maple Lake,
Minnesota 55358. Notice to City shall be mailed to the
City Clerk, 3400 Plymouth Boulevard, Plymouth, MN 55447.
1.5 "Public Way" means any street, alley, or other public
right-of-way within the City.
1.6 "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.
1.7 "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.
SECTION 2. FRANCHISE
2.1 Grant of Franchise. City hereby grants Company, for a
period of twenty years from April 1, 1990 , 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 extend-
ed in the future. For these purposes, Company may construct,
operate, repair and maintain Electric Facilities in, on, over",
under and across the 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 these
purposes, subject, however, to zoning ordinances, other applica-
ble 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 its
acceptance by the Company, and its publication as required by
law. An acceptance by the Company must be filed with the City
Clerk within 90 days after publication.
2.3 Service Rates and Area. 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. The area within the City in which the
Company may provide electric service currently is subject to the
provisions of Minnesota Statutes, Section 216B.40.
2.4 Publication Expense. The expense of publication of
this ordinance shall be paid by the Company.
2.5 Default. 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. If the
dispute is not resolved within 30 days of the written notice,
either party may commence an action in District Court to inter-
pret 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.
3.2 Field Locations. The Company shall provide field
locations for any of its underground Electric Facilities within a
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reasonable period of time on request by the 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 the Company.
3.3 Street Openings. 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 condi=
tions 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 of
Electric Facilities. In such event the Company shall notify the
City by telephone to the office designated by the City before
opening or distributing 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 to grade, regrade, or
change the line of any Public Way, or construct or reconstruct
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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 ex-
pense. 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 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.
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 4.2
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.
4.3 Projects with State or Federal Funding. Relocation,
removal, or rearrangement of any Company facilities made neces-
sary because of the extension into or through City of a
federally -aided highway project shall be governed by the provi-
sions 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 Liability. Nothing in the Ordinance relieves any
person from liability arising out of the failure to exercise
reasonable care to avoid damaging Electric Facilities while
performing any activity.
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SECTION 5. TREE TRIMMING
The Com. -any may trim all trees and shrubs in the Public Ways
and Public Grounds of City interfering with the proper construc-
tion, operation, repair and maintenance of any Electric Facili-
ties 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.
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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 determina-
tion.
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 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.
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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 of not more than five percent of the 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 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.
9.2 Terms Defined. The term "gross revenues" means all
sums, excluding any surcharge or similar addition to the
Company's charges to customers for the purpose of reimbursing the
Company for the cost resulting from the franchise fee, received
by the Company from the sale of electricity to its retail custom-
ers within the corporate limits of the City.
9.3 Collection of the Fee. The franchise fee shall be
payable not less often than quarterly, and shall be based on the
gross revenues of the Company during complete billing months
during the period for which payment is to be 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 the 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. The
Company may pay the City the fee based upon the surcharge billed
subject to subsequent reductions to account for uncollectibles or
customer refunds. The time and manner of collecting the fran-
chise fee is subject to the approval of the Public Utilities
Commission, which the Company agrees to use best efforts to
obtain. The Company agrees to make its gross revenues records
available for inspection by the City at reasonable times.
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9_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 witnin the city py any otner 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 adlacent to the Citv, but shall not
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SECTION 10. 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.
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 December 18, 1989
Mayor of the City of Plymouth
Minnesota
ATTEST:
�-,.✓�-u <'.0 /C-LcF � is i� <`
-Cl/erk of the .City of
Plymouth , Minnesota
0060RE02.C18
Published: Weekly News 5-17-90.
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