HomeMy WebLinkAboutCity Council Ordinance 2005-21CITY OF PLYMOUTH
HENNEPIN COUNTY, MINNESOTA
ORDINANCE NO. 2005-21
FRANCHISE ORDINANCE FOR CENTERPOINT ENERGY
AN ORDINANCE GRANTING TO 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
PUBLIC WAYS AND PUBLIC GROUNDS OF THE CITY OF PLYMOUTH FOR
SUCH PURPOSES; AND PRESCRIBING CERTAIN TERMS AND CONDITIONS
THEREOF.
THE CITY OF PLYMOUTH ORDAINS:
SECTION 1. DEFINITIONS. For
purposes of this Ordinance, the
following capitalized terms shall have
the following meanings:
1.1. City. The City of Plymouth,
County of Hennepin, State of
Minnesota.
1.2. City Utility System. Facilities
used for providing public utility
service owned or operated by the
City or agency thereof.
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
Resources Corp., d/b/a CenterPoint
Energy Minnesota Gas
("CenterPoint Energy"), its
successors and assigns, including
successors to assignees of those
portions of the Company that
constitute 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, but not including
any gas manufacturing or
processing facilities.
1.8. Notice. A writing served by a party
or parties on another party or
parties. Notice to Company must
be mailed to:
CenterPoint Energy Minnegasco
V.P., Regulatory & Supply Service
800 LaSalle Avenue
Minneapolis, MN 55402
Notice to City must be mailed to:
City Manager
City of Plymouth
3400 Plymouth Boulevard
Plymouth, MN 55447
1.9. Public Way. Any street, alley or
other public right-of-way within the
City.
1.10.Public Ground. Land owned or
otherwise controlled by the City for
parks, open space or other public
purposes.
SECTION 2. FRANCHISE.
2.1 Grant of Franchise. The City
grants the Company, for a period of
twenty (20) years from the Effective
Date, the right to import, 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 and Public
Ground subject to the provisions of
this ordinance and to provisions of
other city ordinances. The service
to be provided and the rates to be
charged by Company for gas service
in the City are subject to the
jurisdiction of the Commission.
2.2 Effective Date. This franchise is
effective and after
acceptance by the Company, but in
no event less than fifteen (15) days
after its passage and publication by
the City. Written acceptance or
rejection of the franchise by the
Company must be filed with the
City Clerk within ninety (90) days
after written submission of a draft of
this ordinance to the Company.
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 ninety (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. However, in no
event shall this franchise continue
for more that one year after
expiration of the term set forth in
Section 2.1.
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 City Utility System or the
safety and convenience of ordinary
travel along and over Public Ways.
Gas Facilities may be located on
Public Grounds as determined by
the City. The Company's
construction, reconstruction,
operation, repair, maintenance and
location of Gas Facilities is subject
to other ordinances and regulations
of the City.
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 State Statute
216D.
At the request of the City, the
Company shall provide existing data
on its existing facilities within the
public right-of-way in the form
maintained by the Company at the
time the request was made, if
available, and shall otherwise in all
respects comply with Minnesota
rules Parts 7819.4000 and
7819.4100.
3.3 Permit Required. The Company
may not open or disturb the surface
of any Public Way or Public Ground
without first having obtained a
permit from the City. Company will
comply with all permit conditions
established by the City. 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 Public
Way or Public Ground 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 (2)
business days after commencing the
repair, the Company must apply for
any required permits and pay the
required fees. Except in the case of
emergency work, work undertaken
without a permit by the Company or
its agents shall be subject at the
discretion of the City to a penalty in
the amount of twice the established
permit fees in addition to any other
remedy or penalty specified or
allowed in City Code or State Rules.
3.4 Restoration. After completing
work requiring the opening of a
Public Way or Public Ground, the
Company must restore the same,
including paving and its foundation,
to the condition specified in the
permit which must not be
inconsistent with Minnesota Rules
7819.1100, and maintain the
restored areas in good condition for
two (2) years thereafter. The work
must be completed as promptly as
weather permits. If the Company
does not promptly perform and
complete the work, remove all dirt,
rubbish, equipment and material,
and restore the Public Way or Public
Ground, 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.
In all other aspects, Company shall
comply with the terms of Minnesota
Rules 7819.1100 for restoration of
Public Ways and Grounds, and
Minnesota Rules 7819.3000 and
7819.0100 regarding posting of a
construction bond, or any successor
rules or City Code requirements.
3.5 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.
3.6 Notice of Improvements. The City
must give the Company reasonable
notice of plans for improvements to
Public Ways or Public Ground. The
notice must 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 Ground 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, if it is
apparent that gas service will be
required during the five years
following the paving or resurfacing.
SECTION 4. RELOCATIONS.
4.1 Relocation of Gas Facilities in
Public Ways. If the City determines
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. The
provisions of this section 4.1 apply
only to Gas Facilities constructed in
reliance on this franchise and the
Company does not waive its rights
under an easement or prescriptive
right in the Public Way. Company
will comply with the provisions of
State Rules, including 7819.3300,
regarding abandonment of its
facilities.
4.2 Relocation of Gas Facilities in
Public Ground. The City may,
require the Company to relocate the
Gas Facilities within or remove the
Gas Facilities from Public Ground,
upon a finding by City that the Gas
Facilities have become or will
become a substantial impairment of
the public use or enjoyment to which
the Public Ground is or will be put.
The relocation or removal will be at
the Company's expense. The
provisions of this Section 4.2 apply
only to Gas Facilities constructed in
reliance on this franchise and the
Company does not waive its rights
under an easement or prescriptive
right in the Public Ground. Company
will comply with the provisions of
State Rules, including 7819.3300,
regarding abandonment of its
facilities.
4.3 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.
Upon request of the Company, and
if the City in its sole discretion
determines that the vacation of
Public Way does not require the
relocation of existing Gas Facilities,
the City shall reserve a utility
easement to the Company, created
by and within the document
establishing the vacation.
In no case will the City be liable to
Company for failure to specifically
preserve a right-of-way under
Minnesota Statutes, Section 160.29
4.4 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, if funds for these purposes
are available.
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 claims and
actions on account of injury or death
of persons or damage to property
occasioned by the construction,
maintenance, repair, removal, on or
across the Public Ways and the
Public Grounds. The City will not
be indemnified for losses or claims
alleged to be the result of negligence
of the City, its elected officials,
employees, officers, or agents,
except for those arising out of the
issuance of permits for, or inspection
of the Company's plans or work. The
City shall not be entitled to
reimbursement for its costs incurred
prior to notification to the Company
of claims or actions and a reasonable
opportunity for the Company to
accept and undertake the defense.
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. SUCCESSORS IN
INTEREST.
6.1 This ordinance and the rights and
obligations conferred hereby, is
binding on and inures to the benefit
of the City and its successors and on
the Company and its successors and
permitted assigns.
SECTION 7. FRANCHISE FEE.
7.1 Separate Ordinance. The City
reserves all rights under Minnesota
Statutes, Section 216B.36 or other
law to require a franchise fee at any
time during the term of this
franchise. The franchise fee must be
imposed by a separate ordinance
adopted by the City Council, which
ordinance may not be adopted until
at least sixty (60) days after Notice
enclosing such proposed ordinance
has been served upon the Company
by certified mail. A fee imposed
under this section does not become
effective until sixty (60) days after
Notice enclosing the adopted
ordinance has been served upon the
Company by certified mail.
SECTION 8. LIMITATION ON
APPLICABILITY.
8.1 Limitation 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.
SECTION 9. PREVIOUS
FRANCHISES SUPERSEDED.
9.1 Previous Franchises superseded.
This franchise supersedes and
replaces previous franchises granted
to the Company or its predecessors,
including but not limited to
Ordinance Number 2089-97.
SECTION 10. AMENDMENTS.
10.1 Amendments. Either party to this
franchise agreement may at any time
propose that the agreement be amended.
This ordinance may be amended at any
time by the City passing a subsequent
ordinance declaring the provision 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
SECTION 11. SEVERABILITY.
11.1 Severability. If any portion of this
franchise is found unenforceable
for any reason, the validity of the
remaining provisions will not be
affected.
Adopted this 13th day of September, 2005, by the City Council of the City of Plymouth,
Minnesota.
CITY OF PLYMOUTH