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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