HomeMy WebLinkAboutNo 877 Electric Franchise Ordinance
ORDINANCE 877
ELECTRIC FRANCHISE ORDINANCE
CITY OF MAPLEWOOD, RAMSEY COUNTY, MINNESOTA
An ordinance granting to THE CITY OF NORTH SAINT PAUL, A Minnesota Corporation, 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. The City of North Saint Paul, a Municipal Corporation, 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 City of North Saint Paul City Clerk, 2400
Margaret Street, North Saint Paul, MN 55109. 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.
Customer Class Fee Per Premise Per Month
Residential customers $0.50
Small C&I – Non/Demand $1.00
Small C&I – Demand $6.00
Large Commercial & Industrial $45.00
9.2Separate Ordinance. The franchise fee shall be imposed by a separate ordinance duly adopted
by the City Council, which ordinance shall not be adopted until 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 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.
Passed by the City Council of the City of Maplewood, Minnesota on January 8, 2007.