HomeMy WebLinkAboutNo 852 Electric Franchise Ordinance
ORDINANCE 852
ELECTRIC FRANCHISE ORDINANCE
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, 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 216B.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 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. 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, 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 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, 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.
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 Fee Per Premise Per Month
Residential $0.50
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
Muni Pumping – Demand $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 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.
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 electric franchise granted to Company or its
predecessor.
Passed by the Maplewood City Council on September 27, 2004.