HomeMy WebLinkAboutNo 948 Gas Franchise
ORDINANCE NO. 948
GAS FRANCHISE
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 othersand 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, DOES ORDAIN:
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 State Power Company, a Minnesota corporation, d/b/a/ Xcel Energy its
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 owned 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
provision of this Ordinance. Notice to Company shall be mailed to the General Counsel, 414 Nicollet
th
Mall, 5Floor, Minneapolis, MN 55401. Notice to the City shall be mailed to the City Clerk, City Hall,
1830 East County Rd 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.
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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 inconsistent with
the terms of this franchise agreement. Company may abandon underground gas facilities in place,
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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 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 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 oneyear
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’ 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 Facilitieswhile
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 improvement, (iv) the time when the City will start the work, and (v) if
more than onePublic 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.
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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 vacatefor 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 materials 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 finding by City that the Gas
Facilities have become or will become a substantial impairment to the existing or proposed public use
of Public Ground.
4.3 Projects with Federal Funding. City shall not order Company to remove or relocate its
Gas Facilities when a Public Way is vacated, improved or realigned for a right-of-way project or any
other project 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 are first paid to
Company. The City is obligated to pay Company only for those portions of its relocation costs for
which City has received federal funding specifically allocated for relocation costs in the amount
requested by the Company, which allocated funding the City shall specifically request. Relocation,
removal or rearrangement of any Company Gas Facilities made necessary because 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 rights herein granted to Company are valuable
rights.
4.4 No Waiver. The provision of this franchise apply only to facilities constructed in the
reliance on a franchise from the City and shall not be construedto 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.
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Company is also granted 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 own negligence except for losses or claims arisingout 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 deemedhazardous 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 broughtagainst 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 promptlygiven 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 reasonablecost of relocating the same and the loss and expense
resulting from such relocationare first paid to Company. In no case, however, shall City be liable to
Company for failure to specifically preservea 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, assent and consent
to all of the rights and obligationsof the City provided in this Ordinance.
SECTION 9. FRANCHISE FEE.
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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 streets, sidewalk, and trails, 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:
Class Fee Per Premise Per Month
Residential$2.50
Commercial Firm Non-Demand $6.00
Commercial Firm Demand $75.00
Small Interruptible $50.00
Medium and Large Interruptible $100.00
9.2 Separate Ordinance. Thefranchise fee shall be imposed by separate ordinance duly
adopted by the City Council, which ordinance shall not be adopted until at least 90 days after written
notice enclosingsuch 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 90 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 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 gas 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 gas 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 duringcomplete 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 gas service in each class. The payment
shall be due the last business day of the month following the period forwhich the payment is made.
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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 oftenthan annually and no change shall require a
collection from any customer for gas service in excess of the amounts specifically permitted by this
Section 9. The time and manner of collecting the franchisefee 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 customersin each applicable class of customers by
imposing a surcharge in Company’s applicable rates for gas 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.
9.5EquivalentFee 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 equivalentamount on the receipts from sales of the 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 purposes 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.
10.1Severability. 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.
10.2Limitation 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 toconstituteany 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
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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.
The Maplewood City Council adopted this ordinance on June 8,2015.
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