HomeMy WebLinkAbout09-13-2004A.
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MINUTES
MAPLEWOOD CITY COUNCIL
7:05 P.M. Monday, September 13, 2004
Council Chambers, City Hall
Meeting No. 04-21
CALL TO ORDER:
A meeting of the City Council was held in the Council Chambers, at the City Hall, and was
called to order at 7:05 P.M. by Mayor Cardinal.
PLEDGE OF ALLEGIANCE
ROLL CALL
Robert Cardinal, Mayor Present
Kathleen Juenemann, Councilmember Present
Marvin Koppen, Councilmember Present
Jackie Monahan-Junek, Councilmember Present
Will Rossbach, Councilmember Present
APPROVAL OF MINUTES
1. Minutes from the Special City Council Meeting -August 23, 2004
Councilmember Juenemann moved to approve the minutes from the Special City Council
Meeting from August 23, 2004 as presented.
Seconded by CouncilmemberMonahan-Junek Ayes -All
2. Minutes from City Council Meeting -August 23, 2004
Councilmember Monahan-Junek moved to approve the minutes from the August 23. 2004 City
Council Meeting as amended.
Seconded by CouncilmemberKoppen Ayes -All
APPROVAL OF AGENDA
M1. Garbage Cans
M2. Partnership Proclamation
M3. Paul Mueller Resignation from Planning Commission
M4. Courthouse
M5. South Leg
Councilmember Monahan-Junek moved to approve the agenda as amended.
Seconded by CouncilmemberRossbach Ayes -All
APPOINTMENTS/PRE SENTATIONS
City Council 09-13-04
None
G. CONSENT AGENDA
Councilmember Rossbach moved to approve agenda items as presented.
Seconded by Councilmember Monahan-Junek Ayes -All
1. Approval of Claims
ACCOUNTS PAYABLE:
$ 4,880.77 Checks # 64693 thru # 64694
dated 8/17/04 thru 8/19/04
$ 726,861.08 Checks # 64695 thru # 64745
dated 8/24/04
$ 270,735.26 Disbursements via debits to checking account
dated 8/13/04 thru 8/20/04
$ 882,253.30 Checks #64746 thru # 64818
dated 08/31/04
$ 6,296,785.94 Disbursements via debits to checking account
dated 8/23/04 thru 8/26/04
$ 1,266,735.00 Checks #64819
dated 9/01/04
$ 675,134.54 Checks #64820 thru # 64864
dated 9/02/04 thru 9/07/04
$ 5,016,441.36 Disbursements via debits to checking account
dated 8/27/04 thru 9/02/04
$ 15,139,827.25 Total Accounts Payable
PAYROLL
$ 431,040.11 Payroll Checks and Direct Deposits dated 08/27/04
$ 4,150.96 $ -
dated 08/27/04
$ 435,191.07 Total Payroll
City Council 09-13-04 2
$ 15,575,018.32 GRAND TOTAL
2. Conditional Use Permit Review — Liberty Classical Academy (1717 English Street)
Approved to review the conditional use permit for Liberty Classical Academy at 1717
English Street again in one year.
Conditional Use Permit Review — Sinclair Fuel Station (223 Larpenteur Avenue East)
Approved to review the permit for Sinclair Oil Corporation to operate a motor fuel
station at 223 Larpenteur Avenue East again in one year. All original conditional use
permit conditions as outlined in the July 8, 2002 city council minutes apply.
4. Conditional Use Permit Review — St. Paul Hmong Alliance Church (1770 McMenemy
Street)
Approved to review the conditional use permit for the St. Paul Hmong Allliance Church
at 1770 Mc Menemy Street again in one year.
Conditional Use Permit Review — Hmong American Alliance Church (2515 Maplewood
Drive North)
Approved to review the conditional use permit for the Hmong American Alliance Church
at 2515 Maplewood Drive North again in one year. All original conditional use permit
conditions as outlined in the September 22, 2003 city council minutes apply.
6. Temporary Gambling License — North Star Chapter Brewery Collectible Club of
America -Aldrich Arena
Adopted the following resolution approving the Temporary Gambling License for the
North Star Chapter of the Brewery Collectible Club of America.
RESOLUTION 04-09-158
BE IT HEREBY RESOLVED, by the City Council of Maplewood, Minnesota, that
the temporary permit for lawful gambling is approved for the North Star Chapter of
BCCA.
FURTHERMORE, that the Maplewood City Council waives any objection to the
timeliness of application for said permit as governed by Minnesota Statute §349.213.
FURTHERMORE, that the Maplewood City Council requests that the Gambling
Control Division of the Minnesota Department of Gaming approve said permit
application as being in compliance with Minnesota Statute §349.213.
NOW, THEREFORE, be it further resolved that this Resolution by the City
Council of Maplewood, Minnesota, be forwarded to the Gambling Control Division for
their approval.
7. County Road D Realignment (East), Project 02-07 — Approve Easement Acquisitions
City Council 09-13-04
Approved the acquisitions of the noted an permanent and temporary easement for the
County Road D Realignment Project between Trunk highway 61 and Southlawn Drive
and to authorize staff to make payment to Pineview Estates Townhome Association in
the amount of $26,425 and to Larson Enterprises (Slumberland) in the amount of
$30,400.
County Road D Realignment (West), Project 02-08 — Resolution Ordering Assessment
Hearing
Adopted the following resolution for the County Road D Realignment (West), Walter
Street to T.H. 61, City Project 02 -08 -Ordering the Assessment Hearing for 7:00 p.m.,
Monday, October 11, 2004:
RESOLUTION 04-09-159
ORDERING ASSESSMENT ROLL HEARING
WHEREAS, the clerk and the engineer have, at the direction of the council,
prepared an assessment roll for the County Road D Realignment, (West), Walter St. to
T.H. 61, City Project 02-08, and the said assessment roll is on file in the office of the city
engineer.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
MAPLEWOOD, MINNESOTA:
1. A hearing shall be held on the 11th day of October 2004, at the city hall at
7:00 p.m. to pass upon such proposed assessment and at such time and place all persons
owning property affected by such improvement will be given an opportunity to be heard
with reference to such assessment.
2. The city clerk is hereby directed to cause a notice of the hearing on the
proposed assessment to be published in the official newspaper, at least two weeks prior to
the hearing, and to mail notices to the owners of all property affected by said assessment.
3. The notice of hearing shall state the date, time and place of hearing, the
general nature of the improvement the area to be assessed, that the proposed assessment
roll is on file with the clerk and that written or oral objections will be considered.
9. Kennard Street Improvements, Project 03-04 — Resolution Directing the Modification of
Existing Construction Contract for the Street Construction, (Change Order No. 4) and for
the Landscaping Contract (Change Order No. 1)
Adopted the following resolutions for Change Order No. 4 in the amount of $28,308.24
with Forest Lake Contracting for the road construction contract of Kennard Street,
Project 03-04 and Change Order No., 1 in the amount of $33,114.59 with Nobel Nursery
Retail, Inc. fort he landscaping contract of Kennard Street, Project 03-04:
RESOLUTION 04-09-160
DIRECTING MODIFICATION OF EXISTING CONSTRUCTION CONTRACT
City Council 09-13-04
WHEREAS, the City Council of Maplewood, Minnesota has heretofore ordered
made Improvement Project 03-04, Kennard Street Improvements, and has let a
construction contract pursuant to Minnesota Statutes, Chapter 429, and
WHEREAS, it is now necessary and expedient that said contract be modified and
designated as Improvement Project 03-04, Change Order No. 4.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
MAPLEWOOD, MINNESOTA that the mayor and city clerk are hereby authorized and
directed to modify the existing contract by executing said Change Order No. 4 in the
amount of $28,308.24. The revised contract amount is $1,273,689.04.
No revisions to the project budget are proposed at this time as these changes fall within
the original project budget.
RESOLUTION 04-09-161
DIRECTING MODIFICATION OF EXISTING LANDSCAPE CONTRACT
WHEREAS, the City Council of Maplewood, Minnesota has heretofore ordered
made Improvement Project 03-04, Kennard Street Landscape Improvements, and has let
a landscape contract pursuant to Minnesota Statutes, Chapter 429, and
WHEREAS, it is now necessary and expedient that said landscape contract be
modified and designated as Landscape Improvement, Project 03-04, Change Order No. 1.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
MAPLEWOOD, MINNESOTA that the mayor and city clerk are hereby authorized and
directed to modify the existing contract by executing said Change Order No. 1 in the
amount of $33,114.59. The revised contract amount is $252,992.55.
No revisions to the project budget are proposed at this time as these
changes fall within the original project budget.
10. Increase in Records, Elections and License Department Service Charges
Approved the revisions in the City Clerk Service charges.
11. Annual Maplewood Historical Society Payment
Approved the $2000.00 annual payment to the Maplewood Historical Society
H. PUBLIC HEARINGS
7:00 p.m. Cottages at Legacy Village (Hazelwood Street)
Land Use Plan Change - BC (Business Commercial) to R -3(H)
Conditional Use Permit for Planned Unit Development
Preliminary Plat
Design Approval
City Manager Fursman presented the report.
City Council 09-13-04
b. Planner Roberts presented specifics from the report.
Commissioner Bartol presented the Planning Commission Report.
d. Boardmember Olson presented the Community Design Review Board Report.
Mayor Cardinal opened the public hearing, calling for proponents or opponents. The
following person was heard:
Larry Alm, Southwind Builders, White Bear Lake, MN
f. Mayor Cardinal closed the public hearing.
Councilmember Rossbach moved to adopt the following resolution approving a change to the
comprehensive land use plan from BC (business commercial) to R31-1 high density residential)
for a 4.6 acre site for the Cottages at Legacy Village on Hazelwood Street:
LAND USE PLAN CHANGE RESOLUTION 04-09-162
WHEREAS, Larry Alm, representing Southwind Builders, applied for a change to the City's
land use plan from BC (business commercial) to R31-1 (high density residential).
WHEREAS, this change applies to the property located on the east side of Hazelwood Street, south
of County Road D.
The legal description is:
Lots 1 through 36 inclusive, Block 6, Dorle Park, Ramsey County, and Lots 16 through 21
inclusive, Block 3, Dorle Park, Ramsey County, together with any vacated alleys and roads
accruing thereto.
WHEREAS, the history of this change is as follows:
On August 16, 2004, the Planning Commission held a public hearing. The City staff
published a hearing notice in the Maplewood Review and sent notices to the surrounding
property owners. The Planning Commission gave everyone at the hearing a chance to
speak and present written statements. The Planning Commission recommended that the
City Council approve the land use plan change.
2. On September 13, 2004, the City Council discussed the land use plan change. They
considered reports and recommendations from the Planning Commission and City staff.
NOW, THEREFORE, BE IT RESOLVED that the City Council approve the above described
change because:
1. It would be consistent with the goals and objectives of the comprehensive plan.
2. This change would eliminate an area that the city had once planned for commercial uses
that is between two residential areas.
City Council 09-13-04
3. This change would allow for town house that would be more compatible and in character
with the adjacent townhome development.
4. This site is proper for and consistent with the city's policies for high-density residential
use. This includes:
a. It is on a collector street and is near arterial streets.
b.Minimizing any adverse effects on surrounding properties because there would be no
traffic from this development on existing residential streets.
It would be consistent with the proposed land use.
Seconded by CouncilmemberKoppen Ayes -All
Councilmember Rossbach moved to approve adopt the following resolution approving the 33 -
unit Cottages at Legacy Village PUD (planned unit development) on Hazelwood Street. The citX
bases this approval on the findings required by code:
CONDITIONAL USE PERMIT RESOLUTION 04-09-163
FOR A PLANNED UNIT DEVELOPMENT
WHEREAS, Larry Alm, representing Southwind Builders, applied for a conditional use permit
for a planned unit development for a 33 -unit detached town house development.
WHEREAS, this permit applies to the 4.6 -acre site on the east side of Hazelwood Street lying
south of County Road D. The legal description is:
Lots 1 through 36 inclusive, Block 6, Dorle Park, Ramsey County, and Lots 16 through 21
inclusive, Block 3, Dorle Park, Ramsey County, together with any vacated alleys and roads
accruing thereto.
WHEREAS, the history of this conditional use permit is as follows:
On August 16, 2004, the planning commission recommended that the city council
approve this permit.
2. The city council held a public hearing on September 13, 2004. City staff published a
notice in the paper and sent notices to the surrounding property owners as required by
law. The council gave everyone at the hearing a chance to speak and present written
statements. The council also considered reports and recommendations of the city staff
and planning commission.
NOW, THEREFORE, BE IT RESOLVED that the city council approve the above-described
conditional use permit because:
The use would be located, designed, maintained, constructed and operated to be in
conformity with the City's Comprehensive Plan and Code of Ordinances.
2. The use would not change the existing or planned character of the surrounding area.
City Council 09-13-04
The use would not depreciate property values.
4. The use would not involve any activity, process, materials, equipment or methods of
operation that would be dangerous, hazardous, detrimental, disturbing or cause a
nuisance to any person or property, because of excessive noise, glare, smoke, dust, odor,
fumes, water or air pollution, drainage, water run-off, vibration, general unsightliness,
electrical interference or other nuisances.
The use would generate only minimal vehicular traffic on local streets and would not
create traffic congestion or unsafe access on existing or proposed streets.
6. The use would be served by adequate public facilities and services, including streets,
police and fire protection, drainage structures, water and sewer systems, schools and
parks.
7. The use would not create excessive additional costs for public facilities or services.
The use would maximize the preservation of and incorporate the site's natural and scenic
features into the development design.
9. The use would cause minimal adverse environmental effects.
Approval is subject to the following conditions:
1. The development shall follow the plans date-stamped July 22, 2004,
except where the city requires changes. The director of community development may
approve minor changes.
2. The proposed construction must be substantially started within one year
of council approval or the permit shall end. The council may extend this deadline for one
year.
The city council shall review this permit in one year.
4. The applicant shall meet all the requirements noted in the Assistant City
Engineer's report dated August 6, 2004.
5. The applicant shall sign a development agreement with the city before
the city issues a grading permit.
6. The applicant shall provide a copy of the homeowner's association
documents to staff for approval.
7. The developer or contractor shall construct the project according to the
plans date-stamped July 22, 2004, except as specifically modified by these conditions.
City Council 09-13-04
8. The developer shall add sidewalks and sidewalk connections in locations
that city staff decides are necessary.
9. The developer or builder will provide parking spaces at the ends of the
driveways wherever they may fit.
10. The developer or builder shall install a six -foot -wide concrete sidewalk
on the east side of Hazelwood Street for the entire length of the project.
11. The grades of the power line trail and all public sidewalks will meet
ADA guidelines for slope.
12. Provide a revised landscape plan for city staff approval. This revised
plan shall include:
a. Increasing the tree size to 2 '/z inches (from 2 inches).
b. Changing the Colorado Spruce to Black Hills Spruce or Austrian
Pines (or a mix of these two species).
c. The developer should coordinate the landscaping materials and
designs along Legacy Parkway and Hazelwood Street to make sure that they
are compatible with the approved landscape designs for Heritage Square and
Kennard Street.
d. Overstory trees to be planted along both sides of Legacy Parkway and
Along Hazelwood Street shall be set at an average of 30- to 40 -feet on center.
13. All setbacks are approved as shown on the plans date-stamped July
22, 2004.
14. Side yard building setbacks for all buildings that are less than required
by the zoning code are specifically approved within this PUD as shown on the site plan
date-stamped July 22, 2004.
15. The applicant or developer shall provide visitor -parking spaces at the
minimum quantity of one-half space per townhome unit. This works out to a minimum of
17 required visitor parking.
16. An easement over the power line trail on this parcel will be provided to
the city for access and maintenance.
a. The developer or builder will pay the city Park Access Charges (PAC
fees) for each housing unit at the time of the building permit for each housing unit.
Seconded by Councilmember Koppen Ayes -All
Councilmember Juenemann moved to approve the preliminary plat for the Cottages of Legacy
Village Date stamped July 22, 2004) based on the following conditions:
1. Sign an agreement with the city that guarantees that the developer or contractor will:
City Council 09-13-04
a. Complete all grading for overall site drainage, complete all retaining walls, site landscaping
and meet all city requirements.
b. * Place temporary orange safety fencing and signs at the grading limits.
c. Have Xcel Energy install Group V rate street lights in the development - primarily at the
street and driveway intersections. The exact style and location shall be subject to the city
engineer's approval.
d. Provide all required and necessary easements (including all utility easements and ten -foot
drainage and utility easements along the front and rear lot lines of each lot and five-foot
drainage and utility easements along the side lot lines of each lot).
e. Pay the city for the cost of traffic -control, street identification, and no parking signs.
f Provide all required and necessary easements, including any off-site easements.
g. Demolish or remove all buildings, fencing, scrap metal, debris and junk from the site.
h. Cap and seal all wells on site; and remove septic systems or drainfields, subject to
Minnesota rules and guidelines.
Seconded by CouncilmemberKoppen Ayes -All
Councilmember Juenemann moved to approve the project plans date-stamped July 22, 2004, for
the Cottages at Legacy Village on Hazelwood Street:
Obtaining city council approval of a comprehensive land use plan revision from BC
(business commercial) to R3H (high density residential) to build townhomes on the site.
2. Obtaining city council approval of a planned unit development for this project.
3. Obtaining city council approval of the preliminary plat for this project.
4. Complete the following before the city issues a building permit:
a. Have the city engineer approve the final construction and engineering plans. These
plans shall include grading, drainage, sidewalk, utility, driveway, parking lot and
erosion control plans. These plans shall meet the following conditions:
(1) The erosion control plan shall be consistent with the city code.
(2) The grading plan shall:
(a) Include building, floor elevation, water elevation and contour information.
These shall include the normal water elevation and 100 -year high water
elevation.
(b) Include contour information for the land that the construction will disturb.
City Council 09-13-04 10
(c) Show sedimentation basins or ponds as required by the watershed board or by
the city engineer.
(d) Show all proposed slopes steeper than 3:1 on the proposed construction plans.
The city engineer shall approve the plans, specifications and management
practices for any slopes steeper than 3:1. This shall include covering these
slopes with wood -fiber blankets and seeding them with a "no mow"
vegetation rather than using sod or grass.
(e) Show all retaining walls on the plans. Any retaining walls more than four feet
tall require a building permit from the city.
(f) Show as little disturbance and tree removal as possible on the north, east and
south sides of the site.
(3) The tree plan shall:
(a) Be approved by the city engineer before site grading or tree removal.
(b) Show where the developer will remove, save or replace large trees. This plan
shall include an inventory of all existing large trees on the site.
(c) Show no tree removal beyond the approved grading and tree limits.
(d) Be consistent with the approved grading and landscape plans.
(4) The developer shall be responsible for getting any needed off-site grading or
drainage easements and for recording all necessary easements.
(5) All the parking areas and driveways shall have continuous concrete curb and
gutter.
(6) The driveways shall meet the following standards:
24 -foot width --no parking on either side and 28 -foot width --parking on one side
The developer or contractor shall post the driveways with no parking signs to
meet the above -listed standards.
(7) The developer shall disturb as little as possible of the area along the north, east
and south property lines and the applicant shall change the grading plan for this
part of the site as recommended by the city engineer.
b. Submit an in -ground lawn -irrigation plan to staff showing the location of sprinkler heads.
c. Submit a certificate of survey for all new construction.
d. Submit a revised landscape plan for city approval showing:
(1) As much of the existing vegetation (including the trees) remaining along the
northern, easterly and southerly property lines as possible.
City Council 09-13-04 11
(2) Foundation plantings near and around the buildings.
(3) The in -ground lawn -irrigation system.
(4) Larger tree sizes (2 '/z inch -caliper instead of 2 inch).
(5) Replacing the Colorado Blue Spruce with Black Hills Spruce and Austrian Pines.
(6) Appropriate sized trees planted between the townhomes to ensure no
overcrowding when they are full grown.
B. Submit a revised site lighting plan for city approval. This plan shall show how the
lighting on the buildings would add to the site lighting, and the plan should have
additional lighting near the driveways, where they intersect the public street, so the
driveways are adequately lit. This plan also shall show details about the proposed light
fixtures to ensure they are a design that hides the bulb and lens from view to avoid
nuisances. The light fixtures must have concealed lenses and bulbs to properly shield
glare from the adjacent street right-of-ways and from adjacent residential properties.
C. Have the Saint Paul Regional Water Services (SPRWS) approve the proposed
utility plans.
D. A letter of credit or cash escrow for all required exterior improvements. The amount
shall be 150 percent of the cost of the work. Staff shall determine the dollar amount of
the escrow.
E. The developer shall close on the purchase of the properties with the city before the city
will issue a grading or a building permit for the project.
F. The contractor or builder shall meet all of the requirements of the fire marshal and
building official.
G. The applicant shall obtain all required permits from the Ramsey -Washington Metro
Watershed District.
H. The applicant shall submit an address and traffic signage plan for staff approval.
I. Submit revised building elevations for city staff approval. These elevations shall show
the stone on the front of the attached garages to be installed as a wainscot to the height of
the trim board located on the sides of the units.
Submit homeowner's association documents for city staff approval. These shall specify
the availability of overnight parking for the residents and guests on the private roads and
driveways.
Complete the following before occupying the buildings:
a. Install reflectorized stop signs at each driveway connection to Hazelwood Street
and Legacy Parkway, a handicap -parking sign for each handicap -parking space
City Council 09-13-04 12
and an address on each building. In addition, the applicant shall install "no
parking" and any traffic control signs within the site, as required by staff.
b. Install and taper the concrete sidewalk along Hazelwood Street and Legacy
Parkway to match the driveways.
C. Install and maintain all required landscaping and an in -ground sprinkler system
for all landscaped areas (code requirement).
d. Install continuous concrete curb and gutter along all interior driveways and
around all open parking stalls.
e. Install on-site lighting for security and visibility that follows the approved site
lighting plan. All exterior lighting shall follow the approved lighting plan that
shows the light spread and fixture design. The light fixtures must have concealed
lenses and bulbs to properly shield glare from the adjacent street right-of-ways
and the nearby homes and residential properties.
f Install the trails and sidewalks as shown on the approved plans and as required by
the city engineer.
g. The developer or contractor shall:
Place temporary orange safety fencing and signs at the grading limits.
2. Remove any debris or junk from the site.
6. Repeat this review in two years if the city has not issued a building permit for this project by that
time.
7. Any identification signs for the project must meet the requirements of the city sign ordinance.
8. The city approves the setbacks as shown on the project plans.
9. All work shall follow the approved plans. The director of community development may approve
minor changes.
10. The city will allow a temporary sales office until the time a model unit is available for use. Such
a temporary building shall be subject to the requirements of the building official.
11. No units facing Hazelwood Street shall have utility rooms or exposed utility meters on that
elevation.
12. The applicant shall work with staff to propose suitable screening for outside utility meters. This
may include painting the meters and other utilities along the side of the garages plus adding
landscaping in front of the meters as may be needed.
13. If any required work is not done, the city may allow temporary occupancy if:
a. The city determines that the work is not essential to the public health, safety or welfare.
City Council 09-13-04 13
b. The above -required letter of credit or cash escrow is held by the city for all required
exterior improvements. The owner or contractor shall complete any unfinished
landscaping by June 1 if the building is occupied in the fall or winter, or within six weeks
of occupancy if the building is occupied in the spring or summer.
c. The city receives an agreement that will allow the city to complete any unfinished work.
Seconded by CouncilmemberKoppen Ayes -All
L AWARD OF BIDS
Legacy Village Lighting Improvements, Project 04-23 — Resolution for Award of Bids
a. City Manager Fursman presented the report.
b. Assistant City Engineer Cavett provided specifics from the report.
Councilmember Monahan-Junek moved to adopt the following resolution awarding the bid for
Legacy Village Lighting Improvements to Forest Lake Contracting Company in the amount of
$207,600:
RESOLUTION FOR AWARD OF BIDS 04-09-164
BE IT RESOLVED BY THE CITY COUNCIL OF MAPLEWOOD, MINNESOTA, that the bid
of Forest lake Contracting Co., in the amount of $207,600.00 is the lowest responsible bid for the
Legacy Village Lighting Improvements, City Project 04-23, and the mayor and clerk are hereby
authorized and directed to enter into a contract with said bidder for and on behalf of the city.
The finance director is hereby authorized to make the financial transfers necessary to implement
the financing plan for the project.
Seconded by Councilmember Koppen Ayes -All
2. County Road D Realignment (West), Project 02-08 — Resolution for Award of Bids
a. City Manager Fursman presented the report.
b. Assistant City Engineer Cavett provided specifics from the report.
Councilmember Monahan-Junek moved to award the bid County Road D Realignment West to
Palda & Sons, Inc. in the amount of $1,333,032.71:
RESOLUTION FOR AWARD OF BIDS 04-09-165
BE IT RESOLVED BY THE CITY COUNCIL OF MAPLEWOOD, MINNESOTA, that the bid
of Palda & Son, Inc., in the amount of $1,333,032.71 is the lowest responsible bid for the construction
of County Road D Realignment West (Walter Street to T.H. 61), City Project 02-08, and the mayor and
clerk are hereby authorized and directed to enter into a contract with said bidder for and on behalf of the
city.
The finance director is hereby authorized to make the financial transfers necessary to implement
the financing plan for the project.
City Council 09-13-04 14
Seconded by Councilmember Koppen Ayes -All
J. UNFINISHED BUSINESS
Electric Franchise Fee
City Manager Fursman presented the staff report.
b. Finance Director Faust presented specifics from the report.
Councilmember Juenemann moved to approve the first reading of the Electric Franchise
Ordinance:
ELECTRIC FRANCHISE ORDINANCE
ORDINANCE NO. 852
CITY OF MAPLEWOOD, RAMSEY COUNTY, MINNESOTA
An ordinance granting to Northern States Power Company, A Minnesota Corporation, d/b/a Xcel
Energy its successors and assigns, permission to construct, operate, repair and maintain in the City of
MAPLEWOOD, 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 the public ways and public grounds of the city for such purposes.
THE CITY COUNCIL OF THE CITY OF MAPLEWOOD, RAMSEY COUNTY, MINNESOTA,
ORDAINS:
SECTION 1. DEFINITIONS.
For purposes of this Ordinance, the following capitalized terms listed in alphabetical order shall have the
following meanings:
City. The City of Maplewood, County of Ramsey, State of Minnesota.
City Utility System. Facilities used for providing non -energy related public utility service owned or
operated by City or agency thereof, including sewer and water service, but excluding facilities for providing
heating, lighting or other forms of energy.
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 electric
retail rates now vested in the Minnesota Public Utilities Commission.
Company. Northern States Power Company, a Minnesota corporation, d/b/a Xcel Energy its successors
and assigns.
Electric Facilities. Electric transmission and distribution towers, poles, lines, guys, anchors, conduits,
fixtures, and necessary appurtenances owned or operated by Company for the purpose of providing electric
energy for public use.
Notice. A written notice served by one party on the other party referencing one or more
provisions of this Ordinance. Notice to Company shall be mailed to the General Counsel, Suite 3000,
City Council 09-13-04 15
800 Nicollet Mall, Minneapolis, MN 55402. Notice to the City shall be mailed to the City Clerk, City
Hall, 1830 East County Road B, Maplewood, MN 55109. Either party may change its respective
address for the purpose of this Ordinance by written notice to the other party.
Public Ground. Land owned by the City for park, open space or similar purpose, which is held for use
in common by the public.
Public Way. Any street, alley, walkway or other public right-of-way within the City.
SECTION 2. ADOPTION OF FRANCHISE.
2.1 Grant of Franchise. City hereby grants Company, for a period of 20 years from the date passed
and approved by the City, 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 extended 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 such reasonable regulations as may be imposed by the City pursuant to
ordinance and to the further provisions of this franchise agreement.
2.2 Effective Date; Written Acceptance. This franchise agreement shall be in force and effect from
and after passage of this Ordinance, its acceptance by Company, and its publication as required by law. 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 Rates. The service to be provided and the rates to be charged by Company for
electric service in City are subject to the jurisdiction of the Commission. The area within the City in which
Company may provide electric service is subject to the provisions of Minnesota Statutes, Section 21613.40.
2.4 Publication Expense. The expense of publication of this Ordinance will be paid by City and
reimbursed to City by Company.
2.5 Dispute Resolution. If either parry asserts that the other party is in default in the performance of
any obligation hereunder, the complaining party shall notify the other parry 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 parry 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 for
breach of contract, or either parry may take any other action permitted by law.
SECTION 3. LOCATION, OTHER REGULATIONS.
3.1 Location of Facilities. Electric 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 previously installed therein. Electric Facilities shall be located on
Public Grounds as determined by the City. Company's construction, reconstruction, operation, repair,
maintenance and location of Electric Facilities shall be subject to permits if required by separate ordinance and
to other reasonable regulations of the City to the extent not inconsistent with the terms of this franchise
agreement. Company may abandon underground Electric Facilities in place, provided at the City's request,
City Council 09-13-04 16
Company will remove abandoned metal or concrete encased conduit interfering with a City improvement
project, but only to the extent such conduit is uncovered by excavation as part of the City improvement project.
3.2 Field Locations. Company shall provide field locations for its underground Electric Facilities
within City consistent with the requirements of Minnesota Statutes, Chapter 216D.
3.3 Street Openings. Company shall not open or disturb 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. Permit conditions imposed on Company shall not be more burdensome than
those imposed on other utilities for similar facilities or work. Company may, however, open and disturb 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 Company shall notify the City by telephone to the office
designated by the City as soon as practicable. Not later than the second working day thereafter, 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, Company shall restore the same, including paving and its foundation, to as good a condition as formerly
existed, and shall maintain any paved surface in good condition for two years thereafter. The 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 material, and put the Public Way or 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 at the expense of Company. Company
shall pay to the City the cost of such work done for or performed by the City. This remedy shall be in addition
to any other remedy available to the City for noncompliance with this Section 3.4, but the City hereby waives
any requirement for Company to post a construction performance bond, certificate of insurance, letter of credit
or any other form of security or assurance that may be required, under a separate existing or future ordinance of
the City, of a person or entity obtaining the City's permission to install, replace or maintain facilities in a Public
Way.
3.5 Avoid Damage to Electric Facilities. Nothing in this Ordinance relieves any person from
liability arising out of the failure to exercise reasonable care to avoid damaging Electric Facilities while
performing any activity.
3.6 Notice of Improvements. The City must give Company reasonable notice of plans for
improvements to Public Ways or Public Ground where the City has reason to believe that Electric 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 and 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 Company
a sufficient length of time in advance of the actual commencement of the work to permit Company to make any
necessary additions, alterations or repairs to its Electric Facilities.
3.7 Shared Use of Poles. 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 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 Company
because of such use by City.
SECTION 4. RELOCATIONS.
4.1 Relocation of Electric Facilities in Public Ways. If the City determines to vacate a Public Way
City Council 09-13-04 17
for a City improvement project, or at City's cost to grade, regrade, or change the line of any Public Way, or
construct or reconstruct any City Utility System in any Public Way, it may order Company to relocate its
Electric Facilities located therein if relocation is reasonably necessary to accomplish the City's proposed public
improvement. Except as provided in Section 4.3, Company shall relocate its Electric Facilities at its own
expense. The City shall give 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 Electric Facilities, which was made at
Company expense, the City shall reimburse Company for non -betterment costs 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 reconstruct at its own expense its Electric
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. City may require Company at Company's
expense 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 to the existing or proposed public use of the
Public Ground.
4.3 Projects with Federal Funding. Relocation, removal, or rearrangement of any Company Electric
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, 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 Electric 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 No Waiver. The provisions of this franchise apply only to facilities constructed in reliance on
a franchise from the City and shall not be construed to waive or modify any rights obtained by Company for
installations within a Company right-of-way acquired by easement or prescriptive right before the applicable
Public Way or Public Ground was established, or Company's rights under state or county permit.
SECTION 5. TREE TRIMMING.
Company may trim all trees and shrubs in the Public Ways and Public Grounds of City to the extent
Company finds necessary to avoid interference with the proper construction, operation, repair and maintenance
of any Electric Facilities installed hereunder, provided that Company shall save the City harmless from any
liability arising therefrom, and subject to permit or other reasonable regulation by the City.
SECTION 6. INDEMNIFICATION.
6.1 Indemnity of City. 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
Public Ways and Public Grounds. 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, 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,
City Council 09-13-04 18
and such performance is nevertheless ordered or directed by City after notice of Company's determination.
6.2 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; and 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 Company at least two weeks prior written notice of a proposed vacation of a Public
Way. Except where required for a City 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
Electric 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 Company for failure to
specifically preserve a right-of-way under Minnesota Statutes, Section 160.29.
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 Company, succeed to all of the rights and
obligations of the City provided in this Ordinance.
City Council 09-13-04 19
SECTION 9. FRANCHISE FEE.
9.1 Fee Schedule. During the term of the franchise hereby granted, and in lieu of any permit or other
fees being imposed on Company, the City may impose on Company a franchise fee, for the sole purpose of
recovering the cost to maintain and operate street lights and traffic signals, by collecting the amounts
indicated in a Fee Schedule set forth in a separate ordinance from each customer in the designated Company
Customer Class. The parties have agreed that the franchise fee collected by the Company and paid to the
City in accordance with this Section 9 shall not exceed the following amounts.
Customer Class
Residential
Small C & I — Non -Demand
Small C & I — Demand
Large C&I
Public Street Lighting
Muni Pumping —N/D
MuniPumping — Demand
Fee Per Premise Per Month
$0.50
$1.00
$6.00
$45.00
$0.50
$0.50
$0.50
9.2 Separate Ordinance. 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 Company by certified mail. The fee shall not
become effective until the beginning of a Company billing month at least 60 days after written notice
enclosing such adopted ordinance has been served upon Company by certified mail. Section 2.5 shall
constitute the sole remedy for solving disputes between Company and the City in regard to the interpretation
of, or enforcement of, the separate ordinance. No action by the City to implement a separate ordinance will
commence until this Ordinance is effective. A separate ordinance which imposes a lesser franchise fee on
the residential class of customers than the maximum amount set forth in Section 9.1 above shall not be
effective against Company unless the fee imposed on each other customer classification is reduced
proportionately in the same or greater amount per class as the reduction represented by the lesser fee on the
residential class.
9.3 Terms Defined. For the purpose of this Section 9, the following definitions apply:
9.3.1 "Customer Class" shall refer to the classes listed on the Fee Schedule and as
defined or determined in Company's electric tariffs on file with the Commission.
9.3.2 "Fee Schedule" refers to the schedule in Section 9.1 setting forth the various customer
classes from which a franchise fee would be collected if a separate ordinance were implemented
immediately after the effective date of this franchise agreement. The Fee Schedule in the separate ordinance
may include new Customer Class added by Company to its electric tariffs after the effective date of this
franchise agreement.
9.4 Collection of the Fee. The franchise fee shall be payable quarterly and shall be based
on the amount collected by Company during complete billing months during the period for which payment is to
be made by imposing a surcharge equal to the designated franchise fee for the applicable customer classification
in all customer billings for electric service in each class. The payment shall be due the last business day of the
month following the period for which the payment is made. The franchise fee may be changed by ordinance
from time to time; however, each change shall meet the same notice requirements and not occur more often than
annually and no change shall require a collection from any customer for electric service in excess of the amounts
City Council 09-13-04 20
specifically permitted by this Section 9. The time and manner of collecting the franchise fee is subject to the
approval of the Commission. No franchise fee shall be payable by Company if Company is legally unable to
first collect an amount equal to the franchise fee from its customers in each applicable class of customers by
imposing a surcharge in Company's applicable rates for electric service. Company may pay the City the fee
based upon the surcharge billed subject to subsequent reductions to account for uncollectibles, refunds and
correction of erroneous billings. Company agrees to make its records available for inspection by the City at
reasonable times provided that the City and its designated representative agree in writing not to disclose any
information which would indicate the amount paid by any identifiable customer or customers or any other
information regarding identified customers. In addition, the Company agrees to provide at the time of each
payment a statement summarizing how the franchise fee payment was determined, including information
showing any adjustments to the total surcharge billed in the period for which the payment is being made to
account for any uncollectibles, refunds or error corrections.
9.5 Equivalent Fee Requirement. The separate ordinance imposing the fee shall not be effective
against Company unless it lawfully imposes and the City monthly or more often collects a fee or tax of the same
or greater equivalent amount on the receipts from sales of energy within the City by any other 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
"same or greater equivalent amount" shall be measured, if practicable, by comparing amounts collected as a
franchise fee from each similar customer, or by comparing, as to similar customers the percentage of the annual
bill represented by the amount collected for franchise fee purposes. The franchise fee or tax shall be applicable
to energy sales for any energy use related to heating, cooling or lighting, or to run machinery and appliances, but
shall not apply to energy sales for the purpose of providing fuel for vehicles. If the Company specifically
consents in writing to a franchise or separate ordinance collecting or failing to collect a fee from another energy
supplier in contravention of this Section 9.5, the foregoing conditions will be waived to the extent of such
written consent.
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 and no provision of this franchise 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 the agreement 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.
City Council 09-13-04 21
SECTION 11. AMENDMENT PROCEDURE.
Either parry to this franchise agreement may at any time propose that the agreement be amended to
address a subj ect of concern and the other parry will consider whether it agrees that the amendment is mutually
appropriate. If an amendment is agreed upon, 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 Company's written consent thereto with the City Clerk within 90 days
after the date of final passage by the City of the amendatory ordinance.
SECTION 12. PREVIOUS FRANCHISES SUPERSEDED.
This franchise supersedes any previous electric franchise granted to Company or its predecessor.
Seconded by CouncilmemberRossbach Ayes -All
Councilmember Koppen moved to approve the first reading of the Gas Franchise Ordinance:
GAS FRANCHISE ORDINANCE
ORDINANCE NO. 853
CITY OF MAPLEWOOD, RAMSEY COUNTY, MINNESOTA
AN ORDINANCE GRANTING TO NORTHERN STATES POWER COMPANY, A MINNESOTA
CORPORATION, D/B/A XCEL ENERGY ITS SUCCESSORS AND ASSIGNS, PERMISSION TO
ERECT A GAS DISTRIBUTION SYSTEM FOR THE PURPOSES OF CONSTRUCTING,
OPERATING, REPAIRING AND MAINTAINING IN THE CITY OF MAPLEWOOD, MINNESOTA,
THE NECESSARY GAS PIPES, MAINS AND APPURTENANCES FOR THE TRANSMISSION OR
DISTRIBUTION OF GAS TO THE CITY AND ITS INHABITANTS AND OTHERS AND
TRANSMITTING GAS INTO AND THROUGH THE CITY AND TO USE THE PUBLIC WAYS
AND PUBLIC GROUNDS OF THE CITY FOR SUCH PURPOSES.
THE CITY COUNCIL OF THE CITY OF MAPLEWOOD, RAMSEY COUNTY, MINNESOTA,
ORDAINS:
SECTION 1. DEFINITIONS.
For purposes of this Ordinance, the following capitalized terms listed in alphabetical order shall have the
following meanings:
City. The City of Maplewood, County of Ramsey, State of Minnesota.
City Utility System. Facilities used for providing non -energy related public utility service owned or
operated by City or agency thereof, including sewer and water service, but excluding facilities for providing
heating, lighting or other forms of energy.
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.
Company. Northern States Power Company, a Minnesota corporation, d/b/a Xcel Energy its successors
and assigns.
City Council 09-13-04 22
Gas. "Gas" as used herein shall be held to include natural gas, manufactured gas, or other form of
gaseous energy.
Gas Facilities. Pipes, mains, regulators, and other facilities owner or operated by Company for the
purpose of providing gas service for public use.
Notice. A written notice served by one party on the other party referencing one or more
provisions of this Ordinance. Notice to Company shall be mailed to the General Counsel, Suite 3000,
800 Nicollet Mall, Minneapolis, MN 55402. Notice to the City shall be mailed to the City Clerk, City
Hall, 1830 East County Road B, Maplewood, MN 55109. Either party may change its respective
address for the purpose of this Ordinance by written notice to the other party.
Public Ground. Land owned by the City for park, open space or similar purpose, which is held for use
in common by the public.
Public Way. Any street, alley, walkway or other public right-of-way within the City.
SECTION 2. ADOPTION OF FRANCHISE.
2.1 Grant of Franchise. City hereby grants Company, for a period of 20 years from the date passed
and approved by the City, the right to transmit and furnish Gas 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
extended in the future. For these purposes, Company may construct, operate, repair and maintain Gas 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 such reasonable regulations as may be imposed by the City pursuant to ordinance and to the
further provisions of this franchise agreement.
2.2 Effective Date; Written Acceptance. This franchise agreement shall be in force and effect from
and after passage of this Ordinance, its acceptance by Company, and its publication as required by law. 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 Rates. The service to be provided and the rates to be charged by Company for Gas
service in City are subject to the jurisdiction of the Commission.
2.4 Publication Expense. The expense of publication of this Ordinance will be paid by City and
reimbursed to City by Company.
2.5 Dispute Resolution. If either parry asserts that the other party is in default in the performance of
any obligation hereunder, the complaining party shall notify the other parry 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 parry 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 for
breach of contract, or either parry may take any other action permitted by law.
City Council 09-13-04 23
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 previously installed therein. Gas Facilities shall be located on
Public Grounds as determined by the City. Company's construction, reconstruction, operation, repair,
maintenance and location of Gas Facilities shall be subject to permits if required by separate ordinance and to
other reasonable regulations of the City to the extent not inconsistent with the terms of this franchise agreement.
Company may abandon underground gas facilities in place, provided, at City's request, Company will remove
abandoned metal pipe interfering with a City improvement project, but only to the extent such metal pipe is
uncovered by excavation as part of the City's improvement project.
3.2 Field Locations. Company shall provide field locations for its underground Gas Facilities within
City consistent with the requirements of Minnesota Statutes, Chapter 216D.
3.3 Street Openings. Company shall not open or disturb 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. Permit conditions imposed on Company shall not be more burdensome than
those imposed on other utilities for similar facilities or work. Company may, however, open and disturb any
Public Way or Public Ground without permission from the City where an emergency exists requiring the
immediate repair of Gas Facilities. In such event Company shall notify the City by telephone to the office
designated by the City as soon as practicable. Not later than the second working day thereafter, 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, Company shall restore the same, including paving and its foundation, to as good a condition as
formerly existed, and shall maintain any paved surface in good condition for two years thereafter. The 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 material, and put the Public Way or 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 at the expense of Company. Company shall pay to the City the cost of such work done for or
performed by the City. This remedy shall be in addition to any other remedy available to the City for
noncompliance with this Section 3.4, but the City hereby waives any requirement for Company to post a
construction performance bond, certificate of insurance, letter of credit or any other form of security or
assurance that may be required, under a separate existing or future ordinance of the City, of a person or
entity obtaining the City's permission to install, replace or maintain facilities in a Public Way.
3.5 Avoid Damage to Gas Facilities. Nothing in this Ordinance relieves any person from liability
arising out of the failure to exercise reasonable care to avoid damaging Gas Facilities while performing any
activity.
3.6 Notice of Improvements. The City must give Company reasonable notice of plans for
improvements to Public Ways or Public Ground 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 and 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 Company
a sufficient length of time in advance of the actual commencement of the work to permit Company to make any
necessary additions, alterations or repairs to its Gas Facilities.
City Council 09-13-04 24
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 at City's cost to grade, regrade, or change the line of any Public Way, or construct
or reconstruct any City Utility System in any Public Way, it may order Company to relocate its Gas Facilities
located therein if relocation is reasonably necessary to accomplish the City's proposed public improvement.
Except as provided in Section 4.3, Company shall relocate its Gas Facilities at its own expense. The City shall
give 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 Gas Facilities, which was made at Company expense,
the City shall reimburse Company for Non -Betterment Costs 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 reconstruct at its own expense its Gas 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 Gas Facilities in Public Ground. City may require Company at Company's
expense to relocate or remove its Gas Facilities from Public Ground upon a finding by City that the Gas
Facilities have become or will become a substantial impairment to the existing or proposed public use of the
Public Ground.
4.3 Projects 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, 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 Gas 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 partby 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 No Waiver. The provisions of this franchise apply only to facilities constructed in reliance on
a franchise from the City and shall not be construed to waive or modify any rights obtained by Company for
installations within a Company right-of-way acquired by easement or prescriptive right before the applicable
Public Way or Public Ground was established, or Company's rights under state or county permit.
SECTION 5. TREE TRIMMING.
Company is also granted the permission and authority to trim all shrubs and trees, including roots, in the
Public Ways of City to the extent Company finds necessary to avoid interference with the proper construction,
operation, repair and maintenance of Gas Facilities, provided that Company shall save City harmless from any
liability in the premises.
SECTION 6. INDEMNIFICATION.
6.1 Indemnity of City. 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 Gas Facilities located in the
Public Ways and Public Grounds. The City shall not be indemnified for losses or claims occasioned through its
City Council 09-13-04 25
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 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 determination.
6.2 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; and 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 Company at least two weeks prior written notice of a proposed vacation of a Public
Way. Except where required for a City improvement project, the vacation of any Public Way, after the
installation of Gas Facilities, shall not operate to deprive Company of its rights to operate and maintain such Gas
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 Company for failure to
specifically preserve a right-of-way under Minnesota Statutes, Section 160.29.
SECTION 8. FRANCHISE FEE.
The City at the time of adopting this franchise agreement does not desire to require that Company
collect a franchise fee from its customers in the City. At a future date during the term of this franchise
agreement, the City may determine that it desires Company to collect a franchise fee. If so, the City may
give Company Notice to amend this franchise agreement to authorize collection of a franchise fee by
separate ordinance in an amount and upon such terms and conditions as Company at that time is willing to
incorporate in its gas franchise agreements with other cities of the second, third or fourth class in the seven -
county metropolitan area. Upon receipt of such Notice Company shall negotiate in good faith with City to
so amend this franchise agreement.
SECTION 9. 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 10. PROVISIONS OF ORDINANCE.
9.1 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.
9.2 Limitation on Applicability. This Ordinance constitutes a franchise agreement between the
City and Company as the only parties and no provision of this franchise 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 the agreement or of any one or more of the terms hereof, or otherwise give rise to any cause
City Council 09-13-04 26
of action in any person not a party hereto.
SECTION 11. AMENDMENT PROCEDURE.
Either parry to this franchise agreement may at any time propose that the agreement be amended to
address a subj ect of concern and the other parry will consider whether it agrees that the amendment is mutually
appropriate. If an amendment is agreed upon, 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 Company's written consent thereto with the City Clerk within 90 days
after the date of final passage by the City of the amendatory ordinance.
SECTION 12. PREVIOUS FRANCHISES SUPERSEDED.
This franchise supersedes any previous Gas franchise granted to Company or its predecessor.
Seconded by Councilmember Juenemann Ayes -All
Councilmember Juenemann moved to approve the first reading of the Electric Franchise Fee:
ORDINANCE NO. 854
AN ORDINANCE IMPLEMENTING A ELECTRIC SERVICE FRANCHISE FEE ON
NORTHERN STATES POWER COMPANY, A MINNESOTA CORPORATION, D/B/A XCEL
ENERGY, ITS SUCCESSORS AND ASSIGNS, FOR PROVIDING ELECTRIC SERVICE
WITHIN THE CITY OF MAPLEWOOD.
THE CITY COUNCIL OF THE CITY OF MAPLEWOOD DOES ORDAIN:
SECTION 1. The City of Maplewood Municipal Code is hereby amended to include reference to the
following Special Ordinance.
Subdivision 1. Purpose. The Maplewood City Council has determined that it is in the best
interest of the City to impose a franchise fee on those public utility companies that provide electric
services within the City of Maplewood.
(a) Pursuant to City Ordinance , a Franchise Agreement between the City of Maplewood
and Northern States Power Company, a Minnesota corporation, d/b/a Xcel Energy, its
successors and assigns, the City has the right to impose a franchise fee on Northern States Power
Company, a Minnesota corporation, d/b/a Xcel Energy, its successors and assigns, in an amount
and fee design as set forth in Section 9 of the Northern States Power Company Franchise and in
the fee schedule attached hereto as Schedule A.
Subdivision 2. Franchise Fee Statement. A franchise fee is hereby imposed on Northern
States Power Company, a Minnesota Corporation, d/b/a Xcel Energy, its successors and assigns, under its
electric franchise in accordance with the schedule attached here to and made a part of this Ordinance,
commencing with the Xcel Energy January, 2005 billing month.
This fee is an account -based fee on each premise and not a meter -based fee. In the event that an
entity covered by this ordinance has more than one meter at a single premise, but only one account, only
one fee shall be assessed to that account. If a premise has two or more meters being billed at different
rates, the Company may have an account for each rate classification, which will result in more than one
City Council 09-13-04 27
franchise fee assessment for electric service to that premise. If the Company combines the rate
classifications into a single account, the franchise fee assessed to the account will be the largest
franchise fee applicable to a single rate classification for energy delivered to that premise. In the event
any entities covered by this ordinance have more than one premise, each premise (address) shall be
subject to the appropriate fee. In the event a question arises as to the proper fee amount for any premise,
the Company's manner of billing for energy used at all similar premises in the city will control.
Subdivision 3. Payment. The said franchise fee shall be payable to the City in accordance
with the terms set forth in Section 9.4 of the Franchise.
Subdivision 4. Surcharge. The City recognizes that the Minnesota Public Utilities
Commission allows the utility company to add a surcharge to customer rates to reimburse such utility
company for the cost of the fee and that Xcel Energy will surcharge its customers in the City the amount
of the fee.
Subdivision 5. Record Support for Payment. Xcel Energy shall make each payment when
due and, if required by the City, shall provide at the time of each payment a statement summarizing how the
franchise fee payment was determined, including information showing any adjustments to the total
surcharge billed in the period for which the payment is being made to account for any uncollectibles,
refunds or error corrections.
Subdivision 6. Enforcement. Any dispute, including enforcement of a default regarding
this ordinance will be resolved in accordance with Section 2.5 of the Franchise Agreement.
Subdivision 7. Effective Date of Franchise Fee. The effective date of this Ordinance shall be after
its publication and sixty (60) days after the sending of written notice enclosing a copy of this adopted
Ordinance to Xcel Energy by certified mail. Collection of the fee shall commence as provided in
Subdivision 2.
Subdivision 8. Sunset Clause. This ordinance shall automatically sunset on December 31, 2009,
unless the City Council acts to renew or extend the fee at least six (6) months prior to the sunset date. The
City Council may unilaterally renew or extend the fee on the same terms and conditions. Without waiver of
any rights under Minnesota law, the City Council shall seek agreement from Company if the City intends to
change the fee rate or fee design.
SCHEDULE A
Franchise Fee Rates:
Electric Utility
The franchise fee, for the sole purpose of recovering the cost of street lighting, shall be in an amount
determined by applying the following schedule per customer premise/per month based on metered service to
customers within the City:
Customer Class Fee Per Premise Per Month
Residential $0.50
City Council 09-13-04
28
Small C & I — Non -Demand
$1.00
Small C & I — Demand
$6.00
Large C & I
$45.00
Public Street Lighting
$0.50
Muni Pumping —N/D
$0.50
MuniPumping — Demand
$0.50
Franchise fees are to be collected by the Utility at the rate listed below, and submitted to the City on a
quarterly basis as follows:
January — March collections due by April 30.
April — June collections due by July 31.
July — September collections due by October 31.
October — December collections due by January 31.
Seconded by CouncilmemberKoppen Ayes -All
2. Pawn Shop Ordinance -Second Reading
City Manager Fursman presented the staff report.
b. Police Chief Thomalla presented specifics from the report.
Councilmember Monahan-Junek moved to approve the second reading of the Pawn Shop
Ordinance -
Maplewood Automated Pawn System
Ordinance 851
Purpose. The city council finds that use of services provided by pawnbrokers provides an opportunity
for the commission of crimes and their concealment because pawn businesses have the ability to receive
and transfer property stolen by others easily and quickly. The city council also finds that consumer
protection regulation is warranted in transactions involving pawnbrokers. The city council further finds
that the pawn industry has outgrown the city's current ability to effectively or efficiently identify
criminal activity related to pawn shops. The purpose of this article is to prevent pawn businesses from
being used as facilities for the commission of crimes, and to assure that such businesses comply with
basic consumer protection standards, thereby protecting the public health, safety, and general welfare of
the citizens of the city.
To help the police department better regulate current and future pawn businesses, decrease and
stabilize costs associated with the regulation of the pawn industry, and increase identification of
criminal activities in the pawn industry through the timely collection and sharing of pawn transaction
information, this ordinance also implements and mandates the use of the automated pawn system (APS).
Definitions. When used in this ordinance, the following words shall mean:
City Council 09-13-04 29
Pawnbroker. Any natural person, partnership or corporation, either as principal, or agent or
employee thereof, who loans money on deposit or pledge of personal property, or other valuable thing,
or who deals in the purchasing of personal property, or other valuable thing on condition of selling the
same back again at a stipulated price, or who loans money secured by chattel mortgage on personal
property, taking possession of the property or any part thereof so mortgaged. To the extent that a
pawnbroker' s business includes buying personal property previously used, rented or leased, or selling it
on consignment, the provisions of this article shall be applicable.
Reportable transaction. Every transaction conducted by a pawnbroker in which merchandise is
received through a pawn, purchase, consignment or trade, or in which a pawn is renewed, extended or
redeemed, or for which a unique transaction number or identifier is generated by their point-of-sale
software, or an item is confiscated by law enforcement, is reportable except:
(1) The bulk purchase or consignment of new or used merchandise from a merchant, manufacturer
or wholesaler having an established permanent place of business, and the retail sale of said merchandise,
provided the pawnbroker must maintain a record of such purchase or consignment which describes each
item, and must mark each item in a manner which relates it to that transaction record.
(2) Retail and wholesale sales of merchandise originally received by pawn or purchase, and for
which all applicable hold and/or redemption periods have expired.
Billable transaction. Every reportable transaction conducted by a pawnbroker is a billable
transaction except renewals, redemptions or extensions of existing pawns on items previously reported
and continuously in the licensee's possession, voided transactions, and confiscations.
License fees:
(a) The annual license fees for licenses issued under this article shall be imposed, set, established and
fixed by the city council by resolution from time to time reflecting a reasonable estimate of the actual
costs of administering, processing and investigating the license application, as determined by the city
council.
(b) The billable transaction license fee shall reflect the cost of processing transactions and other
related regulatory expenses as determined by the city council, and shall be reviewed and adjusted, if
necessary, every six (6) months. Licensees shall be notified in writing thirty (30) days before any
adjustment is implemented.
(c) Billable transaction fees shall be billed monthly and are due and payable within thirty (30) days.
Failure to do so is a violation of this article.
Application required.
(a) (Contents.) An application form provided by the department of licenses and consumer services must
be completed by every applicant for a new license or for renewal of an existing license. Every new
applicant must provide all the following information:
City Council 09-13-04 30
(1) If the applicant is a natural person:
a. The name, place and date of birth, street resident address, and phone number of applicant.
b. Whether the applicant is a citizen of the United States or resident alien.
c. Whether the applicant has ever used or has been known by a name other than the applicant's
name, and if so, the name or names used and information concerning dates and places used.
d. The name of the business if it is to be conducted under a designation, name, or style other
than the name of the applicant and a certified copy of the certificate as required by Minnesota Statutes,
Section 333.01.
e. The street address at which the applicant has lived during the preceding five (5) years.
f The type, name and location of every business or occupation in which the applicant has been
engaged during the preceding five (5) years and the name(s) and address(es) of the applicant's
employer(s) and partner(s), if any, for the proceeding five (5) years.
g. Whether the applicant has ever been convicted of a felony, crime, or violation of any
ordinance other than a traffic ordinance. If so, the applicant must furnish information as to the time,
place, and offense of all such convictions.
h. The physical description of the applicant.
i. Applicant's current personal financial statement and true copies of the applicant's federal and
state tax returns for the two (2) years prior to application.
j. If the applicant does not manage the business, the name of the manager(s) or other person(s)
in charge of the business and all information concerning each of them required in a. through h. of
subdivision (1) of this section.
(2) If the applicant is a partnership:
a. The name(s) and address(es) of all general and limited partners and all information
concerning each general partner required in subdivision (1) of this section.
b. The name(s) of the managing partner(s) and the interest of each partner in the licensed
business.
City Council 09-13-04 31
c. A true copy of the partnership agreement shall be submitted with the application. If the
partnership is required to file a certificate as to a trade name pursuant to Minnesota Statutes, Section
333.01, a certified copy of such certificate must be attached to the application.
d. A true copy of the federal and state tax returns for partnership for the two (2) years prior to
application.
e. If the applicant does not manage the business, the name of the manager(s) or other person(s)
in charge of the business and all information concerning each of them required in a. through h. of
subdivision (1) of this section.
(3) If the applicant is a corporation or other organization:
a. The name of the corporation or business form, and if incorporated, the state of incorporation.
b. A true copy of the Certificate of Incorporation, Articles of Incorporation or Association
Agreement, and By-laws shall be attached to the application. If the applicant is a foreign corporation, a
Certificate of Authority as required by Minnesota Statutes, Section 303.06, must be attached.
c. The name of the manager(s) or other person(s) in charge of the business and all information
concerning each manager, proprietor, or agent required in a. through h. of subdivision (1) of this section.
d. A list of all persons who control or own an interest in excess of five (5) percent in such
organization or business form or who are officers of the corporation or business form and all
information concerning said persons required in subdivision (1) above. This subdivision (d), however,
shall not apply to a corporation whose stock is publicly traded on a stock exchange and is applying for a
license to be owned and operated by it.
(4) For all applicants:
a. Whether the applicant holds a current pawnbroker, precious metal dealer or secondhand
goods dealer license from any other governmental unit.
b. Whether the applicant has previously been denied, or had revoked or suspended, a
pawnbroker, precious metal dealer, or secondhand dealer license from any other governmental unit.
c. The location of the business premises.
d. If the applicant does not own the business premises, a true and complete copy of the
executed lease.
City Council 09-13-04 32
e. The legal description of the premises to be licensed.
f Whether all real estate and personal property taxes that are due and payable for the premises
to be licensed have been paid, and if not paid, the years and amounts that are unpaid.
g. Whenever the application is for premises either planned or under construction or undergoing
substantial alteration, the application must be accompanied by a set of preliminary plans showing the
design of the proposed premises to be licensed.
h. Such other information as the city council or issuing authority may require.
(b) New manager. When a licensee places a manager in charge of a business, or if the named
manager(s) in charge of a licensed business changes, the licensee must complete and submit the
appropriate application within fourteen (14) days. The application must include all appropriate
information required in this section.
(1) An investigation fee shall be charged an applicant by the city in such amount as may be
imposed, set, established and fixed by the city council by resolution from time to time reflecting
an amount equal to the cost of the investigation to assure compliance with this article.
(c) Application execution. All applications for a license under this article must be signed and sworn
to under oath or affirmation by the applicant. If the application is that of a natural person, it must be
signed and sworn to by such person; if that of a corporation, by an officer thereof, if that of a
partnership, by one of the general partners; and if that of an unincorporated association, by the manager
or managing officer thereof.
(d) Investigation. The police department must investigate into the truthfulness of the statements set
forth in the application and shall endorse the findings thereon. The applicant must furnish to the police
license inspector such evidence as the inspector may reasonably require in support of the statements set
forth in the application.
(e) Public hearing. The council member may request a public hearing at council, or in the evening
hours at a location in the approximate vicinity of the proposed location.
(f) Persons ineligible for a license. No licenses under this article will be issued to an applicant who is
a natural person, a partnership if such applicant has any general partner or managing partner, a
corporation or other organization if such applicant has any manager, proprietor or agent in charge of the
business to be licensed, if the applicant:
(1) Is a minor at the time that the application is filed;
(2) Has been convicted of any crime directly related to the occupation licensed as prescribed by
City Council 09-13-04 33
Minnesota Statutes, Section 364.03, Subd. 2, and has not shown competent evidence of sufficient
rehabilitation and present fitness to perform the duties of a licensee under this article as prescribed by
Minnesota Statutes, Section 364.03, Subd. 3; or
(3) Is not of good moral character or repute.
Bond required. Before a license will be issued, every applicant must submit a five thousand dollar
($5,000.00) bond on the forms provided by the licensing authority. All bonds must be conditioned that
the principal will observe all laws in relation to pawnbrokers, and will conduct business in conformity
thereto, and that the principal will account for and deliver to any person legally entitled any goods
which have come into the principal's hand through the principal's business as a pawnbroker, or in lieu
thereof, will pay the reasonable value in money to the person. The bond shall contain a provision that no
bond may be canceled except upon thirty (30) days written notice to the city, which shall be served upon
the licensing authority.
Records required. At the time of any reportable transaction other than renewals, extensions or
redemptions, every licensee must immediately record in English the following information by using ink
or other indelible medium on forms or in a computerized record approved by the police department:
(1) A complete and accurate description of each item including, but not limited to, any trademark,
identification number, serial number, model number, brand name, or other identifying mark on such an
item.
(2) The purchase price, amount of money loaned upon, or pledged therefor.
(3) The maturity date of the transaction and the amount due, including monthly and annual interest
rates and all pawn fees and charges.
(4) Date, time and place the item of property was received by the licensee, and the unique alpha
and/or numeric transaction identifier that distinguishes it from all other transactions in the licensee's
records.
(5) Full name, current residence address, current residence telephone number, date of birth and
accurate description of the person from whom the item of the property was received, including: sex,
height, weight, race, color of eyes and color of hair.
(6) The identification number and state of issue from any of the following forms of identification of
the seller:
a. Current valid Minnesota driver's license.
b. Current valid Minnesota identification card.
City Council 09-13-04 34
c. Current valid photo identification card issued by another state or province of Canada.
(7) The signature of the person identified in the transaction.
(8) Effective sixty (60) days from the date of notification by the police department of acceptable
video standards the licensee must also take a color photograph or color video recording of:
a. Each customer involved in a billable transaction.
b. Every item pawned or sold that does not have a unique serial or identification number
permanently engraved or affixed.
The required photograph must be at least two (2) inches in length by two (2) inches in width and
must be maintained in such a manner that the photograph can be readily matched and correlated with all
other records of the transaction to which they relate. Such photographs must be available to the chief of
police, or the chief s designee, upon request. The major portion of the photograph must include an
identifiable front facial close-up of the person who pawned or sold the item. Items photographed must
be accurately depicted. The licensee must inform the person that he or she is being photographed by
displaying a sign of sufficient size in a conspicuous place in the premises. If a video photograph is
taken, the video camera must zoom in on the person pawning or selling the item so as to include an
identifiable close-up of that person's face. Items photographed by video must be accurately depicted.
Video photographs must be electronically referenced by time and date so they can be readily matched
and correlated with all other records of the transaction to which they relate. The licensee must inform
the person that he or she is being videotaped orally and by displaying a sign of sufficient size in a
conspicuous place on the premises. The licensee must keep the exposed videotape for three (3) months.
(9) Digitized photographs. Effective sixty (60) days from the date of notification by the police
department licensees must fulfill the color photograph requirements in section (RECORDS REQUIRED)
(8) by submitting them as digital images, in a format specified by the issuing authority, electronically
cross- referenced to the reportable transaction they are associated with. Notwithstanding the digital
images may be captured from required video recordings, this provision does not alter or amend the
requirements in subdivision (8).
(10) Renewals, extensions and redemptions. For renewals, extensions and redemptions, the licensee
shall provide the original transaction identifier, the date of the current transaction, and the type of
transaction.
(11) Inspection of records. The records must at all reasonable times be open to inspection by the
police department or department of licenses and consumer services. Data entries shall be retained for at
least three (3) years from the date of transaction. Entries of required digital images shall be retained a
minimum of ninety (90) days.
City Council 09-13-04 35
Daily reports to police. (a) Effective no later than sixty (60) days after the police department
provides licensees with the current version of the Automated Pawn System Interchange File
Specification, licensees must submit every reportable transaction to the police department daily in the
following manner:
(1) Licensees must provide to the police department all reportable transaction information by
transferring it from their computer to the Automated Pawn System via modem using the current version
of the Automated Pawn System Interchange File Specification. All required records must be transmitted
completely and accurately after the close of business each day in accordance with standards and
procedures established by the issuing authority. Any transaction that does not meet the Automated Pawn
System Interchange File Specification must be corrected and resubmitted the next business day. The
licensee must display a sign of sufficient size, in a conspicuous place in the premises, which informs
patrons that all transactions are reported to the police department daily.
(b) Billable transaction fees. Licensees will be charged for each billable transaction reported to the
police department.
(1) If a licensee is unable to successfully transfer the required reports by modem, the licensee must
provide the police department, upon request, printed copies of all reportable transactions along with the
video tape(s) for that date, by noon the next business day;
(2) If the problem is determined to be in the licensee's system and is not corrected by the close of
the first business day following the failure, the licensee must continue to provide the required reports as
detailed in section (DAILYREPORTS TO POLICE) (b)(1), and must be charged a fifty dollar ($50.00)
reporting failure penalty, daily, until the error is corrected; or
(3) If the problem is determined to be outside the licensee's system, the licensee must continue to
provide the required reports in (DAILYREPORTS TO POLICE) (b)(1), and resubmit all such
transactions via modem when the error is corrected.
(4) If a licensee is unable to capture, digitize or transmit the photographs required in
(RECORDS REQUIRED) (9), the licensee must immediately take all required photographs with
a still camera, cross-reference the photographs to the correct transaction, and make the pictures
available to the police department upon request.
(5) Regardless of the cause or origin of the technical problems that prevented the licensee from
uploading their reportable transactions, upon correction of the problem, the licensee shall upload every
reportable transaction from every business day the problem had existed.
(6) (DAILYREPORTS TO POLICE) (b) (1) through (3) notwithstanding, the police department
may, upon presentation of extenuating circumstances, delay the implementation of the daily reporting
penalty.
Receipt required. Every licensee must provide a receipt to the party identified in every reportable
City Council 09-13-04 36
transaction and must maintain a duplicate of that receipt for three (3) years. The receipt must include at
least the following information:
(1) The name, address and telephone number of the licensed business.
(2) The date and time the item was received by the licensee.
(3) Whether the item was pawned or sold, or the nature of the transaction.
(4) An accurate description of each item received including, but not limited to, any trademark,
identification number, serial number, model number, brand name, or other identifying mark on such an
item.
(5) The signature or unique identifier of the licensee or employee that conducted the transaction.
(6) The amount advanced or paid.
(7) The monthly and annual interest rates, including all pawn fees and charges.
(8) The last regular day of business by which the item must be redeemed by the pledger without risk
that the item will be sold, and the amount necessary to redeem the pawned item on that date.
(9) The full name, current residence address, current residence telephone number, and date of birth
of the pledger or seller.
(10) The identification number and state of issue from any of the following forms of identification
of the seller:
a. Current valid Minnesota driver's license.
b. Current valid Minnesota identification card.
Current valid photo driver's license or identification card issued by another state or province
of Canada.
(11) Description of the pledger or seller including approximate sex, height, weight, race, color of
eyes and color of hair.
(12) The signature of the pledger or seller.
City Council 09-13-04 37
(13)All printed statements as required by state statute 325J.04 subdivision 2, or any other applicable
statutes.
Redemption period.
Any person pledging, pawning or depositing an item for security must have a minimum of ninety (90)
days from the date of that transaction to redeem the item before it may be forfeited and sold. During the
ninety (90) day holding period, items may not be removed from the licensed location except as provided
in (BUSINESS AT ONLY ONE PLACE). Licensees are prohibited from redeeming any item to anyone
other than the person to whom the receipt was issued or, to any person identified in a written and
notarized authorization to redeem the property identified in the receipt, or to a person identified in
writing by the pledger at the time of the initial transaction and signed by the pledger, or with approval of
the police license inspector. Written authorization for release of property to persons other than original
pledger must be maintained along with original transaction record in accordance with (RECORDS
REQUIRED) (10).
Holding period.
Any item purchased or accepted in trade by a licensee must not be sold or otherwise transferred for
thirty (30) days from the date of the transaction. An individual may redeem an item seventy-two (72)
hours after the item was received on deposit, excluding Sundays and legal holidays.
Police order to hold property. (a) Investigative hold. Whenever a law enforcement official from any
agency notifies a licensee not to sell an item, the item must not be sold or removed from the premises.
The investigative hold shall be confirmed in writing by the originating agency within seventy-two (72)
hours and will remain in effect for fifteen (15) days from the date of initial notification, or until the
investigative order is canceled, or until an order to hold/confiscate is issued, pursuant to section [b]
(POLICE ORDER TO HOLD) below, whichever comes first.
(b) Order to hold. Whenever the chief of police, or the chief s designee, notifies a licensee not to sell
an item, the item must not be sold or removed from the licensed premises until authorized to be released
by the chief or the chief s designee. The order to hold shall expire ninety (90) days from the date it is
placed unless the chief of police or the chief s designee determines the hold is still necessary and notifies
the licensee in writing.
(c) Order to confiscate. If an item is identified as stolen or evidence in a criminal case, the chief or
chief s designee may:
(1) Physically confiscate and remove it from the shop, pursuant to a written order from the chief or
the chiefs designee, or
(2) Place the item on hold or extend the hold as provided in (POLICE ORDER TO HOLD
PROPERTY) (b), and leave it in the shop.
When an item is confiscated, the person doing so shall provide identification upon request of the
licensee, and shall provide the licensee the name and phone number of the confiscating agency and
investigator, and the case number related to the confiscation.
City Council 09-13-04 38
When an order to hold/confiscate is no longer necessary, the chief of police, or chief s designee shall
so notify the licensee.
Inspection of items. At all times during the terms of the license, the licensee must allow law
enforcement officials to enter the premises where the licensed business is located, including all off-site
storage facilities as authorized in (BUSINESS AT ONLY ONE PLACE), during normal business hours,
except in an emergency, for the purpose of inspecting such premises and inspecting the items, ware and
merchandise and records therein to verify compliance with this article or other applicable laws.
Label required. Licensees must attach a label to every item at the time it is pawned, purchased or
received in inventory from any reportable transaction. Permanently recorded on this label must be the
number or name that identifies the transaction in the shop's records, the transaction date, the name of the
item and the description or the model and serial number of the item as reported to the police department,
whichever is applicable, and the date the item is out of pawn or can be sold, if applicable. Labels shall
not be re -used.
Prohibited acts. (a) No person under the age of eighteen (18) years may pawn or sell or attempt to
pawn or sell goods with any licensee, nor may any licensee receive any goods from a person under the
age of eighteen (18) years.
(b) No licensee may receive any goods from a person of unsound mind or an intoxicated person.
(c) No licensee may receive any goods, unless the seller presents identification in the form of a valid
driver's license, a valid State of Minnesota identification card, or current valid photo driver's license or
identification card issued by the state or providence of residency of the person from whom the item was
received.
(d) No licensee may receive any item of property that possesses an altered or obliterated serial
number or operation identification number or any item of property that has had its serial number
removed.
(e) No person may pawn, pledge, sell, consign, leave, or deposit any article of property not their own;
nor shall any person pawn, pledge, sell, consign, leave, or deposit the property of another, whether with
permission or without; nor shall any person pawn, pledge, sell, consign, leave, or deposit any article of
property in which another has a security interest; with any licensee.
(f) No person seeking to pawn, pledge, sell, consign, leave, or deposit any article of property with any
licensee shall give a false or fictitious name; nor give a false date of birth; nor give a false or out of date
address of residence or telephone number; nor present a false or altered identification, or the
identification of another; to any licensee.
Denial, suspension or revocation. Any license under this article may be denied, suspended or revoked
City Council 09-13-04 39
for one or more of the following reasons:
(1) The proposed use does not comply with the any applicable zoning code.
(2) The proposed use does not comply with any health, building, building maintenance or other
provisions of the Maplewood Code of Ordinances, or state law, or other lawfully enacted legal
authority.
(3) The applicant or licensee has failed to comply with one or more provisions of this article.
(4) The applicant is not a citizen of the United States or a resident alien, or upon whom it is
impractical or impossible to conduct a background or financial investigation due to the unavailability of
information.
(5) Fraud, misrepresentation or bribery in securing or renewing a license.
(6) Fraud, misrepresentation or false statements made in the application and investigation for, or in
the course of, the applicant's business.
(7) Violation within the preceding five (5) years, of any law relating to theft, damage or trespass to
property, sale of a controlled substance, or operation of a business.
(8) The owner of the premises licensed or to be licensed would not qualify for a license under the
terms of this article.
Business at only one place. A license under this article authorizes the licensee to carry on its
business only at the permanent place of business designated in the license. However, upon written
request, the police license inspector may approve an off-site locked and secured storage facility. The
licensee shall permit inspection of the facility in accordance with (INSPECTION OF ITEMS). All
provisions of this article regarding record keeping and reporting apply to the facility and its contents.
Property shall be stored in compliance with all provisions of the city code. The licensee must either own
the building in which the business is conducted, and any approved off-site storage facility, or have a
lease on the business premise that extends for more than six (6) months.
Separability. Should any section, subsection, clause or other provision of this article be declared by a
court of competent jurisdiction to be invalid such decision shall not effect the validity of the
ordinance as a whole or any part other than the part so declared invalid.
Seconded by Councilmember Juenemann Ayes -All
Councilmember Koppen moved to approve a $2.50 per transaction charge be assessed to each
pawnshop_
City Council 09-13-04 40
Seconded by Councilmember Juenemann Ayes -Mayor Cardinal, Councilmembers
Juenemann, Koppen and Rossbach
Nays-Councilmember Monahan-Junek
K. NEW BUSINESS
On -Sale Intoxicating Liquor License — Brian Bauman — The Rock
City Manager Fursman presented the staff report.
b. Police Chief Thomalla presented specifics from the report.
Councilmember Monahan-Junek moved to approve the on -sale intoxicating liquor license for
Brian Bauman at the Rock.
Seconded by Councilmember Koppen Ayes -All
2. Existing County Road D Improvements (Walter to TH 61), Project 04 -06 --Resolution
Approving Joint Powers Agreements with Vadnais Heights and Ramsey County for Joint
Funding and Roadway Turnback
City Manager Fursman presented the staff report.
b. Assistant City Engineer Cavett presented specifics from the report.
Councilmember Monahan-Junek moved to adopt the following resolution approving the Joint
Powers Agreement with Vadnais Heights and Ramsev Countv for Joint funding of the Count-,
Road D Realignment Project between Trunk Highway 61 and Walter Street and authorizes the
Mayor and City Manager to sign said agreement signif
ying the City's approval and provides for
a revised project budget fort the improvement project:
RESOLUTION 04-09-166
APPROVING JOINT POWERS AGREEMENT WITH
VADNAIS HEIGHTS AND RAMSEY COUNTY
WHEREAS, pursuant to resolution of the council adopted November 10, 2003, a report has been
prepared under the direction of the city engineer with reference to the County Road D Realignment
Improvements (West of TH 61 to Highridge Court), City Project 02-08, and this report was received by
the council on January 26, 2004, and
WHEREAS, a resolution of the city council adopted the 9th day of February 2004, ordered the
improvement on the proposed County Road D Realignment Improvements (West of TH 61 to Highridge
Court), City Project 02-08, and
WHEREAS, the City Council has directed the City Engineer to negotiate a joint powers agreement with
the City of Vadnais Heights and Ramsey County, and
WHEREAS, the project requires a joint financing and funding plan along with maintenance
responsibility and jurisdictional roadway changes.
City Council 09-13-04 41
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF MAPLEWOOD,
MINNESOTA, as follows:
1. That said Joint Powers Agreement, a copy of which is hereby attached, is approved and the
Mayor and City Manager are authorized to execute said agreement signifying the Councils approval.
2. As noted within said Joint Powers Agreement, the City Council hereby accepts the turnback of
existing County Road D by Ramsey County from the new alignment of County Road D to Trunk
Highway 61, as a joint border street with the City of Vadnais Heights. Said joint border street shall
hereby be named County Road D Court and shall be maintained as provided by the Joint Powers
Agreement.
3. The finance director is hereby authorized to make the financial transfers necessary to implement
the revised financing plan for the project as follows:
Municipal State Aid Street (MSAS)
$
449,616
MSAS Bond Proceeds
$
496,800
Special Assessments
$1,077,964
City of Vadnais Heights
$
257,168
Trout Land Cash Payment
$
10,000
Ramsey County Contribution
$
690,582
TOTAL $2,982,130
Seconded by Councilmember Rossbach Ayes -Mayor Cardinal, Councilmembers
Juenemann, Monahan-Junek and Rossbach
Councilmember Koppen-Absent from the
diaz
Hazelwood Street Improvements (Beam Ave. to County Rd. D), Project 03-39 —
Resolution Ordering Preparation of Feasibility Study
City Manager Fursman presented the staff report.
b. Assistant City Engineer Cavett presented specifics from the report.
Councilmember Monahan-Junek moved to adopt the following resolution ordering the
preparation of the feasibility study for the Hazelwood Street Improvements (Beam Avenue to
County Road D, Project 03-39):
RESOLUTION 04-09-167
ORDERING PREPARATION OF A FEASIBILITY STUDY
WHEREAS, it is proposed to make improvements to the Hazelwood Street from Beam Avenue
to County Road D, City Project 03-39, and to assess the benefited property for all or a portion of the cost
of the improvement, pursuant to Minnesota Statutes, Chapter 429,
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF MAPLEWOOD,
City Council 09-13-04 42
MINNESOTA:
That the proposed improvement be referred to the city engineer for study and that he is instructed
to report to the council with all convenient speed advising the council in a preliminary way as to
whether the proposed improvement is necessary, cost effective and feasible and as to whether it should
best be made as proposed or in connection with some other improvement, and the estimated cost of the
improvement as recommended.
FURTHERMORE, funds in the amount of $8,000 are appropriated to prepare this feasibility
report.
Seconded by Councilmember Rossbach Ayes -All
4. Trunk Highway 61 Improvements (Beam to 694), Project 03-07 — Resolution Approving
Proceeding Subsequent Process for Sparkle Auto on TH 61 Right of Way
City Manager Fursman presented the staff report.
b. Assistant City Engineer Cavett presented specifics from the report.
Councilmember Koppen moved to adopt the following resolution approving the proceeding
subsequent process for Sparkle Auto on the Trunk Highway 61 Right of Way
CITY OF MAPLEWOOD
RAMSEY COUNTY, MINNESOTA
RESOLUTION 04-09-168
RESOLUTION AUTHORIZING PROCEEDING SUBSEQUENT ACTION FOR OLD
HIGHWAY 61 PROPERTY
WHEREAS, the State of Minnesota has quit claimed its easement interest to the old Highway 61
property to the City of Maplewood, said easement interest has encumbered the City's project, Project No.
03-07 for public benefit;
WHEREAS, fee title to the Property is needed for orderly development within the City and for
public health, safety and welfare;
WHEREAS, Sparkle Auto is the fee owner of property that is necessary for right-of-way in order to
complete Project No. 03-07;
WHEREAS, Sparkle Auto and the City will enter into an Exchange Agreement which provides for
the necessary and proper construction of Trunk Highway 61 Improvements, where Sparkle Auto will convey
to the City required right-of-way in exchange for fee title to the old Highway 61 property;
WHEREAS, the exchange between Sparkle Auto and the City represents a fair market exchange of
property and is in lieu of eminent domain proceedings pursuant to Minnesota Statute Section 117.0 1, et. al.
of Sparkle Auto's property.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF MAPLEWOOD,
City Council 09-13-04 43
MINNESOTA THAT:
The City shall authorize the City Attorney to initiate the proceeding subsequent action in Ramsey County
District Court required to obtain fee title to the old Highway 61 property.
Seconded by Councilmember Rossbach Ayes -All
5. Preliminary Approval of Proposed Tax Levy Payable in 2005
a. City Manager Fursman presented the staff report.
b. Finance Director Faust presented specifics from the report.
Councilmember Rossbach moved to adopt the following resolution setting the proposed tax levy
for 2004 payable in 2005 in the amount of $13,858,000 (8%):
RESOLUTION 04-09-169
RESOLUTION PROVIDING PRELIMINARY APPROVAL OF A PROPOSED
TAX LEVY PAYABLE IN 2005
WHEREAS, State law requires that the City Council give preliminary approval of a proposed tax
levy for 2004 payable in 2005 by September 15, 2004 and
WHEREAS, the City Council has reviewed the Proposed 2005 Budget and has determined the
amount of the proposed tax levy payable in 2005 which is the maximum amount that will be levied.
NOW THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
MAPLEWOOD, MINNESOTA THAT the proposed tax levy for 2004 payable in 2005 in the amount of
$13,858,000 is hereby given preliminary approval.
Seconded by Mayor Cardinal Ayes -All
6. Set Public Hearing Dates on Proposed 2005 Budget and Property Tax Levy
a. City Manager Fursman presented the staff report.
b. Finance Director Faust presented specifics from the report.
Councilmember Koppen moved to approve the followinghearing dates for the Proposed 2005
Budget and Property Tax Lever
Initial Hearing -Monday, December 6th at 7:00 p.m.
Continuation Hearing (if needed) -Monday, December 13th at 7:00 p.m.
Adoption Hearing -Monday, December 13th at 7:00 p.m.
Seconded by Councilmember Rossbach Ayes -All
L. VISITOR PRESENTATIONS
None
City Council 09-13-04 44
M. COUNCIL PRESENTATIONS
Garbage Cans -Mayor Cardinal asked Assistant City Manager Coleman to reiterate the
Garbage Can policy and illegal storage.
2. Partnership Proclamation
Mayor Cardinal moved to adopt a National Alcohol and Drug Addition Recovery Month
(September) Proclamation.
Seconded by Councilmember Koppen Ayes -All
Resignation of Paul Mueller
Councilmember Monahan-Junek thanked retiring Commissioner Paul Mueller for serving
on the Maplewood Planning Commission since 1998.
4. Ramsey County Emergency Management
Councilmember Rossbach moved approval to direct staff to write a letter to Ramsey County
encouraging them to include room for Emergency Management and a Dispatch Center to be
included in the proposed Courthouse Project.
Seconded by Councilmember Koppen
South Leg Meeting
Ayes -Mayor Cardinal, Councilmembers
Koppen and Rossbach
Nays-Councilmembers Juenemann and
Monahan-Junek
Councilmember Rossbach announced there will not be a September South Leg Meeting
but past attendees will receive a letter regarding the October meeting date.
City Council 09-13-04 45
N. ADMINISTRATIVE PRESENTATIONS
Volunteer Appreciation Picnic
The Annual Volunteer Appreciation Picnic will be Wednesday, September 15th, 5-8 p.m.
at the Battle Creek Park Pavilion.
O. ADJOURNMENT
Mayor Cardinal moved to adjourn the meeting at 9:03 p.m.
Seconded by Councilmember Juenemann Ayes - All
City Council 09-13-04 46
AGENDA NO. J-1
AGENDA REPORT
TO: City Manager
FROM: Finance Director °
RE: Electric Franchise Fee
DATE: September 13, 2004
Attached is a revised gas franchise ordinance that I recently received from Excel
Energy. It replaces the one in the agenda report. The only difference between the two
is the revised ordinance includes a new paragraph (Section 8) that gives the City
Council an option to implement a gas franchise fee in the future.
It is recommended that the City Council approve the revised gas franchise ordinance.
P\agn\franchise fee4
GAS FRANCHISE ORDINANCE
ORDINANCE NO.
CITY OF MAPLEWOOD, RAMSEY COUNTY, MINNESOTA
AN ORDINANCE GRANTING TO NORTHERN STATES POWER COMPANY, A
MINNESOTA CORPORATION, D/B/A XCEL ENERGY ITS SUCCESSORS AND
ASSIGNS, PERMISSION TO ERECT A GAS DISTRIBUTION SYSTEM FOR THE
PURPOSES OF CONSTRUCTING, OPERATING, REPAIRING AND MAINTAINING
IN THE CITY OF MAPLEWOOD, MINNESOTA, THE NECESSARY GAS PIPES,
MAINS AND APPURTENANCES FOR THE TRANSMISSION OR DISTRIBUTION OF
GAS TO THE CITY AND ITS INHABITANTS AND OTHERS AND TRANSMITTING
GAS INTO AND THROUGH THE CITY AND TO USE THE PUBLIC WAYS AND
PUBLIC GROUNDS OF THE CITY FOR SUCH PURPOSES.
THE CITY COUNCIL OF THE CITY OF MAPLEWOOD, RAMSEY COUNTY,
MINNESOTA, ORDAINS:
SECTION 1. DEFINITIONS.
For purposes of this Ordinance, the following capitalized terms listed in alphabetical order
shall have the following meanings:
City. The City of Maplewood, County of Ramsey, State of Minnesota.
City Utility System. Facilities used for providing non -energy related public utility service
owned or operated by City or agency thereof, including sewer and water service, but excluding facilities
for providing heating, lighting or other forms of energy.
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.
Company. Northern States Power Company, a Minnesota corporation, d/b/a Xcel Energyits
successors and assigns.
Gas. "Gas" as used herein shall be held to include natural gas, manufactured gas, or other
form of gaseous energy.
Gas Facilities. Pipes, mains, regulators, and other facilities owner or operated by Company
for the purpose of providing gas service for public use.
Notice. A written notice served by one party on the other party referencing one or more
provisions of this Ordinance. Notice to Company shall be mailed to the General Counsel, Suite
3000, 800 Nicollet Mall, Minneapolis, MN 55402. Notice to the City shall be mailed to the City
Clerk, City Hall, 1830 East County Road B, Maplewood, MN 55109. Either party may change its
respective address for the purpose of this Ordinance by written notice to the other party.
Public Ground. Land owned by the City for park, open space or similar purpose, which is
held for use in common by the public.
Public Way. Any street, alley, walkway or other public right-of-way within the City.
SECTION 2. ADOPTION OF FRANCHISE.
2.1 Grant of Franchise. City hereby grants Company, for a period of 20 years from the
date passed and approved by the City, the right to transmit and furnish Gas 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 extended in the future. For these purposes, Company may
construct, operate, repair and maintain Gas 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 such
reasonable regulations as may be imposed by the City pursuant to ordinance and to the further
provisions of this franchise agreement.
2.2 Effective Date; Written Acceptance. This franchise agreement shall be in force and
effect from and after passage of this Ordinance, its acceptance by Company, and its publication as
required by law. 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 Rates. The service to be provided and the rates to be charged by Company
for Gas service in City are subject to the jurisdiction of the Commission.
2.4 Publication Expense. The expense of publication of this Ordinance will be paid by
City and reimbursed to City by Company.
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 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. 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 previously installed therein. Gas Facilities
shall be located on Public Grounds as determined by the City. Company's construction,
reconstruction, operation, repair, maintenance and location of Gas Facilities shall be subject to permits
if required by separate ordinance and to other reasonable regulations of the City to the extent not
2
inconsistent with the terms of this franchise agreement. Company may abandon underground gas
facilities in place, provided, at Citys request, Company will remove abandoned metal pipe interfering
with a City improvement project, but only to the extent such metal pipe is uncovered by excavation as
part of the City's improvement project.
3.2 Field Locations. Company shall provide field locations for its underground Gas
Facilities within City consistent with the requirements of Minnesota Statutes, Chapter 216D.
3.3 Street Qptnings. Company shall not open or disturb any Public Way or Public
Ground for any purpose without fust having obtained a permit from the City, if required by a separate
ordinance, for which the City may impose a reasonable fee. Permit conditions imposed on Company
shall not be more burdensome than those imposed on other utilities for similar facilities or work.
Company may, however, open and disturb any Public Way or Public Ground without permission from
the City where an emergency exists requiring the immediate repair of Gas Facilities. In such event
Company shall notify the City by telephone to the office designated by the City as soon as practicable.
Not later than the second working day thereafter, 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, Company shall restore the same, including paving and its foundation, to as good a
condition as formerly existed, and shall maintain any paved surface in good condition for two years
thereafter. The 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 material, and put
the Public Way or 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 at the expense of Company. Companyshall payto the Citythe
cost of such work done for or performed by the City. This remedy shall be in addition to any other
remedy available to the City for noncompliance with this Section 3.4, but the City hereby waives any
requirement for Company to post a construction performance bond, certificate of insurance, letter of
credit or any other form of security or assurance that may be required, under a separate existing or
future ordinance of the City, of a person or entity obtaining the Citys permission to install, replace
or maintain facilities in a Public Way.
3.5 Avoid Damage to Gas Facilities. Nothing in this Ordinance relieves any person from
liability arising out of the failure to exercise reasonable care to avoid damaging Gas Facilities while
performing any activity.
3.6 Notice of Improvements. The City must give Company reasonable notice of plans for
improvements to Public Ways or Public Ground 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 and 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 Company a sufficient length of time in advance of
the actual commencement of the work to permit Company to make any necessary additions, alterations
or repairs to its Gas Facilities.
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 at City's cost to grade, regrade, or change the line of any Public
Way, or construct or reconstruct any City Utility System in any Public Way, it may order Company to
relocate its Gas Facilities located therein if relocation is reasonably necessary to accomplish the City's
proposed public improvement. Except as provided in Section 4.3, Company shall relocate its Gas
Facilities at its own expense. The City shall give 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 Gas Facilities, which was made at Company expense, the City shall reimburse Company for
Non -Betterment Costs 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 reconstruct at its own expense its Gas 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 Qty Utility System or
other City improvement.
4.2 Relocation of Gas Facilities in Public Ground. City may require Company at
Company's expense to relocate or remove its Gas Facilities from Public Ground upon a finding by
City that the Gas Facilities have become or will become a substantial impairment to the existing or
proposed public use of the Public Ground.
4.3 Projects 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, 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 Gas 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 No Waiver. The provisions of this franchise apply only to facilities constructed in
reliance on a franchise from the City and shall not be construed to waive or modify any rights obtained
by Company for installations within a Company right-of-way acquired by easement or prescriptive
right before the applicable Public Way or Public Ground was established, or Company's rights under
state or county permit.
SECTION 5. TREE TRIMMING.
Company is also granted the permission and authority to trim all shrubs and trees, including
roots, in the Public Ways of City to the extent Company finds necessaryto avoid interference with the
proper construction, operation, repair and maintenance of Gas Facilities, provided that Company shall
save City harmless from any liability in the premises.
2
SECTION 6. INDEMNIFICATION.
6.1 Indemnity of City. Company shall indemnify, keep and hold the City free and
harmless from any and all liability on account of injuryto 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 except for losses or claims arising out of or alleging
the City's negligence as to the issuance of permits for, or inspection of, Companys 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 determination.
6.2 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, and 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 Company at least two weeks prior written notice of a proposed vacation of
a Public Way. Except where required for a City improvement project, the vacation of any Public Way,
after the installation of Gas Facilities, shall not operate to deprive Company of its rights to operate and
maintain such Gas Facilities, until the reasonable cost of relocating the same and the loss and expense
resulting from such relocation are fust paid to Company. In no case, however, shall City be liable to
Company for failure to specifically preserve a right-of-way under Minnesota Statutes, Section 160.29.
SECTION 8. FRANCHISE FEE.
The City at the time of adopting this franchise agreement does not desire to require that
Company collect a franchise fee from its customers in the City. At a future date during the term of
this franchise agreement, the City may determine that it desires Company to collect a franchise fee.
If so, the City may give Company Notice to amend this franchise agreement to authorize collection
of a franchise fee by separate ordinance in an amount and upon such terms and conditions as
Company at that time is willing to incorporate in its gas franchise agreements with other cities of the
second, third or fourth class in the seven -county metropolitan area. Upon receipt of such Notice
Company shall negotiate in good faith with City to so amend this franchise agreement.
SECTION 9. 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.
5
SECTION 10. PROVISIONS OF ORDINANCE.
9.1 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.
9.2 Limitation on Applicability. Thus Ordinance constitutes a franchise agreement
between the City and Company as the only parties and no provision of this franchise 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 parry beneficiary of the agreement 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 to this franchise agreement may at any time propose that the agreement be
amended to address a subject of concern and the other party will consider whether it agrees that the
amendment is mutually appropriate. If an amendment is agreed upon, 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 Company's
written consent thereto with the City Clerk within 90 days after the date of final passage by the City
of the amendatory ordinance.
SECTION 12. PREVIOUS FRANCHISES SUPERSEDED.
This franchise supersedes any previous Gas franchise granted to Company or its predecessor.
Passed and approved:
Attest:
City Clerk
Mayor
0
2004.