Loading...
HomeMy WebLinkAboutSeptember 8, 2003OFFICIAL PROCEEDINGS COLUMBIA HEIGHTS CITY COUNCIL CITY COUNCIL MEETING SEPTEMBER 8, 2003 The following are the minutes for the regular meeting of the City Council held at 7:00 p.m. on Monday, September 8, 2003 in the City Council Chambers, City Hall, 590 40th Avenue N.E., Columbia Heights, MN. Reverend Dan Thompson, Columbia Heights Assembly of God Church, gave the Invocation. CALL TO ORDER/ROLL CALL Mayor Wyckoff called the meeting to order at 7:03 p.m. Present: Mayor Wyckoff, Councilmember Williams, Councilmember Nawrocki, Councilmember Ericson, and Councilmember Kelzenberg PLEDGE OF ALLEGIANCE - recited ADDITIONS/DELETIONS TO MEETING AGENDA Nawrocki stated that the second anniversary date of the tragedy in New York and is now call "Patriots' Day". There will be a memorial event on Thursday, September 11, at the Fridley High School, and encouraged everyone to attend. PROCLAMATIONS, PRESENTATIONS, RECOGNITIONS AND GUESTS A) Proclamations - none B) Presentations - none 1) Report from the Sister City Committee Wally Logacz stated he is receiving letters and cards from our Polish visitors indicating how grateful they are for our hospitality, and that it was the most memorable thing that ever happened to them. Logacz thanked the Mayor, City Council, City Manager, and everyone in the City for their help to bring the guests' here and to entertain them. He stated the desire that a City official visit Lomianki in the future to honor our Sister City relationship. Logacz stated he wouM attend Lomianki ' s annual ceremony on September 2 F't, which honors those from the American Bi 7 airplane that was shot down over their community on September 18, 1944. Logacz gave the history of the Poles during WWII. He tom ora book he received that included how Walter Szymczak died as a result of that plane crash; details' that resident Bernie Szymczak (Walter's brother) never knew. The City of Lomianki honors this event every year. They have three monuments' in their community significant to this event. They also have a private school named "The American Flyer School ". Dolores Strand co-chair of the Sister City Committee, stated her appreciation of the support received from the City and Staff during the dignitary's visit. Strand and Logacz attended the Sister Cities International Convention this duly in St. Louis. Strand gave the background of the Sister City International organization. There are now 700 American cities partnered with foreign cities. She emphasized the importance of municipal support to this organization and fisted other conference topics. 120 different countries were represented at a parade during the conference. The Columbia Heights' Sister City Committee received second place as the most outstanding small Sister City Committee. First place went to Red Wing, Minnesota. The Minnesota conference will be in St. Paul in September. Governor Pawlenty will be visiting Warsaw and may visit Lomianki. Strand stated that the Sister City Committee will again participate in the Wheel Chairs for Peace project. C) Introduction of New Employees - none City Council Minutes September 8, 2003 Page 2 of 13 D) Recognition - none CONSENT AGENDA Walt Fehst, City Manager, took Councilmembers through the consent items. 1) Approve City Council Meeting Minutes for August 25, 2003 Motion to approve the minutes of the August 25, 2003, regular City Council meeting as presented. Nawrocki asked for the following corrections: Page one - 2.3 liquor should be 3.2 liquor. Page three - motion to approve the consent agenda should include "with the exception of item #5". 2) Accept Boards and Commissions Meeting Minutes Motion to accept the Economic Development Authority meeting minutes of July 15, 2003. Motion to accept the Planning and Zoning Commission meeting minutes of September 2, 2003. 3) Establish a Work Session Meeting Date for Monday, September 15, 2003 at 7:00 p.m. Motion to establish a Work Session meeting to be scheduled for Monday, September 15, 2003 beginning at 7:00 p.m. in the City Council Chambers. Work Session agenda items for September 15, 2003: · LMCIT Insurance Pool re: City liability on watermain breaks or sewage backups - Hopefully, an agent will be available to attend the meeting. · Revised Public Nuisance Ordinance - This wouM bring a portion of the proposed codified ordinance to Council prior to the rest of the City Code, to allow the establishment of an abatement process in Columbia Height; yard,'. · Abatement - 3730 Tyler - The intention is that taldng someone to court is not always the answer. · Copier replacement 4) Adopt Resolution 2003-36, being a resolution authorizing application for a Predevelopment Grant. Motion to waive the reading of Resolution 2003-36, there being ample copies available to the public. Motion to adopt Resolution 2003-36, being a resolution authorizing application for a Predevelopment Grant. Fehst stated this is a one time grant for predevelopment of housing through the Metropofitan Council. Some members of the Met Council have already visited the redevelopment site. The grant would fund the infrastructure feasibility study and engineering service cost,'. Nclwrocki asked if we have made a commitment to housing in the industrial area and if this is for contamination clean up. Fehst stated no, but housing is under consideration. This is an additional funding source. RESOLUTION NO. 2003-36 RESOLUTION AUTHORIZING APPLICATION FOR A PREDEVELOPMENT GRANT WHEREAS, the City has identified a proposed project within the City that meets the Predevelopment Grant purpose and criteria; and WHEREAS, the City has the institutional, managerial and financial capability to ensure adequate project administration; and WHEREAS, the City certifies that it will comply with all applicable laws and regulations as stated in the City Council Minutes September 8, 2003 Page 3 of 13 contract agreements; and WHEREAS, the City Council of Columbia Heights, Minnesota agrees to act as legal sponsor for the project contained in the opportunity grant application submitted on September 15, 2003. BE IT FURTHER RESOLVED that the City Manager is hereby authorized to apply to the Metropolitan Council for this funding on behalf of the City of Columbia Heights and to execute such agreements as are necessary to implement the project on behalf of the applicant. 5) Establish a hearing date of September 22, 2003 for revocation or suspension of rental property license at 4610-4612 Fillmore Street NE Motion to Establish a Hearing Date of September 22, 2003 for Revocation or Suspension of a License to Operate a Rental Property within the City of Columbia Heights against Mohsen Dessouki at 4610-4612 Fillmore Street NE. 6) Approve Business License Applications Motion to approve the items as listed on the business license agenda for September 8, 2003 as presented. 7) Approve Payment of Bills Motion to approve payment of the bills out of the proper funds as listed in the attached check register covering Check Number 104826 through 105005 in the amount of $873,035.92. Motion by Nawrocki, second by Williams, to approve the consent agenda. Upon vote: All ayes. Motion carried. PUBLIC HEARINGS Public Hearing called for Revocation/Suspension of Rental Housing License at 3732 3rd Street Mayor Wyckoff closed the Public Hearing regarding the revocation or suspension of the rental license held by Dale Frenzel regarding rental property at 3732 3rd Street N.E. in that the property complies with the Residential Maintenance Code. Wyckoff indicated to Mr. Frenzel that his property was in compliance and there wouM not be a public hearing. ITEMS FOR CONSIDERATION A) Other Ordinances and Resolutions 1) Adopt Ordinance #1459, being an Ordinance adopting a gas franchise agreement with CenterPoint Energy Minnegasco Wyckoff stated this Ordinance is to renew the current agreement with CenterPoint Energy Minnegasco. Nawrocki stated that the Ordinance now allows for the City to set a franchise fee. Fehst stated that we were not restricted from establishing a franchise fee in the prior ordinance. Motion by Williams, second by Nawrocki, to waive the reading of Ordinance No. 1459, there being ample copies available to the public. Upon vote: All ayes. Motion carried. Motion by Williams, second by Nawrocki, to adopt Ordinance #1459, being an Ordinance adopting a gas franchise agreement with CenterPoint Energy Minnegasco. Upon vote: Kelzenberg, aye; Williams, aye; Ericson, aye; Nawrocki, aye; Wyckoff, aye. Upon vote: All ayes. Motion carried. City Council Minutes September 8, 2003 Page 4 of 13 (Ordinance #1459 is attached at the end of this document) 8) Adopt Resolution No. 2003-37, being a resolution pertaining to the rezoning of certain properties at 4707, 4747, 4757, 4801, 4811, and 4849 Central Avenue NE Wyckoff stated that this Resolution would allow the rezoning of the Kmart area. Nawrocki stated that an ordinance should be amended with an ordinance, not a resolution. City Attorney Jim Hoeft stated that the structure of the new zoning ordinance allows rezoning by resolution, similar to establishing fees. Modifying provisions within the ordinance would need to be by ordinance. Nawrocki stated he was not opposed to the project, but felt there should be a public hearing at a City Council meeting on this significant topic. He questioned the impact of this project on the School District. Nawrocki indicated that there would be no additional tax dollars from this project to support community services for sixteen years, which is not all necessarily bad. Wyckoff stated that the Planning and Zoning Commission (P&Z) held a public hearing on September 2'~, and all business owners along Central Avenue have been notified. Wyckoff stated that a report was received regarding the School District. Hoeft stated that the P&Z held the required hearing, and that the rezoning of the property to the proposed designated would expand the current owners ability to utilize their property, rather than restrict it. Nawrocki stated that the previously allowable unit density was 12 units per acre and this proposal would have 18 unit,'. Tim Johnson, City Planner, stated the maximum is 20 units per acre, and Council could choose to allow up to 30 unit; with certain restrictions. Johnson explained the similarities of the Transit Oriented and the Mix Use District designations. Nawrocki requested a copy of the Metropolitan Council letter approving changes to the Comprehensive Plan. Johnson showed a map of the Kmart area, indicating where rezoning is requested. The mixed use component allows residential development, would not harm commercial property, but would allow flexibility for businesses. Johnson stated that the City Council and Met Council have accepted the changes to the Comprehensive Plan and this resolution would assure consistency. Williams asked what would happen following this action. Johnson stated that the site plan and plat plan would be next, which would require a P&Z public hearing, and then go before the City Council for their review. After this, a final plat plan would come before the Council. Williams referred to a resident's letter concerning bank erosion during the proposed development. Johnson stated that the engineers would have to address the issue. Wyckoff stated that a letter to this resident has been drafted and asked that Councilmembers also receive a copy. Nawrocki stated that Council would not have a chance to make decisions for stabilization of the bank. Fehst indicated that Council could hold apublic hearing, but State law requires the P&Z to hold the public hearing. The P&Z will only make a recommendation to the City Council. Fehst stated that it would be in the developer's best interest to stabilize and beautify the bank. Hoefi indicated that if the plan were consistent with the Comprehensive Plan, it wouM entail a Tax Increment Financing agreement and development agreement, which wouM cover the issues discussed. If this development does not proceed, current owners couM present a site plan to the P&Z and if that falls within the zoning ordinance, wouM not be required to come before Council. Hoefi stated that the local ordinance is consistent with State Statutes. Nawrocld stated those decisions shouM be made by the elected body. Fehst stated this development would be "pay as you go" taxing, not tike another area where there was a failure to pay from foreclosure. They will have to bring their tax increment proposal before the City Council and the Economic Development Authority. City Council Minutes September 8, 2003 Page 5 of 13 Roger Strom, 690 47 ~ Avenue, asked what would happen to the surrounding businesses included in the plan. Wyckoff stated that we would try to relocate them in Columbia Height,'. Wyckoff stated that other businesses have expressed interest to come into our community if this development does come in. Fehst also stated the desire to relocate these businesses in town. Nawrocki again pointed out the result; ora sixteen year tax increment financing (TIF) district on City services. Fehst stated the other option is to leave the property as is. Fehst stated that law allows for a 25 year TIF plan. There is a ten percent allowance back to the City for administrative cost,'. Fehst stated that additional incomes and new businesses would move into the community because of this development. Wyckoff referred to Rob Fiorendino 's comment that "the biggest mistake the City could make would be to do nothing". Wyckoff indicated that the Kmart building is now scheduled for demofition. Motion by Williams, second by Kelzenberg, to waive the reading of Resolution 2003-37, there being ample copies available to the public. Upon vote: All ayes. Motion carried. Motion by Williams, second by Kelzenberg, to adopt Resolution 2003-37, being a resolution pertaining to the rezoning of certain properties at 4707, 4747, 4757, 4801, 4811, and 4849 Central Avenue NE. Nawrocki stated there have been other proposals for the property, but the owner has decfined to accept those proposal,'. Kmart was held under the bankruptcy law for a period of time. Motion by Nawrocki, to table the matter of rezoning for the purpose of holding a public hearing on this matter. As no second was received, this motion was not considered. Upon vote: Kelzenberg, aye; Williams, aye; Ericson, aye; Nawrocki, aye; Wyckoff, aye. Upon vote: All ayes. Motion carried. RESOLUTION 2003-37 A RESOLUTION PERTAINING TO THE REZONING OF CERTAIN PROPERTIES LOCATED AT 4707, 4747, 4757, 4801, 4811, AND 4849 CENTRAL AVENUE NE WHEREAS, the City of Columbia Heights established the 'Kmart Redevelopment Advisory Group' to undertake a planning process to determine appropriate redevelopment of the Kmart Redevelopment Project area; and WHEREAS, the City of Columbia Heights recognizes that the current Kmart site has many detriments that prevent it from being reused strictly as a commercial site, recognizing a housing component is necessary in order for a successful redevelopment project to occur; and WHEREAS, rezoning from GB, General Business District to MXD, Mixed-Use District provides flexibility in the project redevelopment, and allows for both commercial and residential components as part of the redevelopment project area; and WHEREAS, the rezoning is consistent with the City Comprehensive Plan, and is in the public interest and not solely for the benefit of a single property owner; and WHEREAS, the existing use of the property and the zoning classification of the property within the general area of the Kmart property are compatible with the proposed Mixed-Use Zoning classification, and WHEREAS, there has been a change in the character and trend of development in the general area of the City Council Minutes September 8, 2003 Page 6 of 13 Kmart property, which has taken place since the original commercial zoning designation, which necessitates the need to consider rezoning for a more appropriate use; and BE IT FURTHER RESOLVED that the Planning Commission has reviewed and recommends approval of the proposed rezoning from GB, General Business to MXD, Mixed-Use District. E) F) Bid Considerations - none Other Business 1) Approval of Purchase Agreement for Single Family Residential Property at 3942 Van Buren Street Fehst introduced Kathy Young, Assistant City Engineer and president of the Minnesota Public Works' Association. Young stated that this purchase is for flood mitigation purposes and that the City has mitigated other similar flood properties on 42nd and on Washington Street, with a 50/50 cost split through a DNR grant. Fehst stated that Mr. Dan Wilson, the City's Relocation Agent, was present to answer questions on acquisition of the property. Young stated that this home and garages in the area have a history of beingflooded with clear water. Wilson indicated that there is water in this basement a good share of the time, and that this is not a good property for housing. He stated negotiations are underway with another neighbor that also has a problem. Wyckoff asked if the curb cut would be fixed. Young stated it would be. Nawrocki questioned the property value used and stated that there would also be demolition costs, and asked what would happen to the lot. Young stated the proposal would be to grade the lot with a swale of three to four feet, with a catch basin that would be connected to the storm water system. Young stated that aH costs' are incorporated into the grant and would be split 50/50. Williams suggested we pursue offering to sell the lot to the neighbors to enhance their lots'. Fehst stated it would have to be with the provision that the area would never be filled Nawrocki stated that they would have use of the land without buying it. Wyckoff questioned possibly using these type of lots for more community gardens. Young indicated that this lot does flood in heavy rains. Motion by Ericson, second by Williams, to authorize the Mayor and City Manager to execute the purchase agreement for the acquisition of 3942 Van Buren Street in the amount of $100,000 for flood mitigation purposes with funds from the City's Storm Water Utility and DNR Flood Mitigation Grant funds on a 50/50 cost share. Upon vote: Kelzenberg, aye; Williams, aye; Ericson, aye; Nawrocki, aye; Wyckoff, aye. Upon vote: All ayes. Motion carried. ADMINISTRATIVE REPORTS Report of the City Manager Fehst reminded everyone that the City Auction would be this Saturday; open at 9:00 a.m. to view items and the auction would begin at 10:00 a.m., at the Public Works' garage. There will be some forfeiture cars, bikes, computer equipment and many miscellaneous items. Wyckoff questioned the status of the Star Bar. Fehst stated that at this point ownership is in question and that the City Attorney would review the liquor license. Nawrocki stated this should be researched immediately. Hoefi stated there are current citations for the Star Bar and that he has discussed ownership with their attorney. He was told that the current license holder would be the owner through the end of the year. Report of the City Attorney - none City Council Minutes September 8, 2003 Page 7 of 13 CITIZENS FORUM Roger Strata, 690 47 ~ Avenue, asked if the Apache Theater would sit empty, now that it is closed. Fehst stated that there are several people interested in the site. St. Anthony also has plans for the Apache site. Wyckoff indicated that the owner may try operating a dollar theater, and stated that he has been contacted by the medical clinic with interest in the site. Strata thanked the City Engineer for the additional benches at Sullivan Park. COUNCIL COMMUNICATION Nawrocki · Comprehensive Plan change was put into effect so quickly, has concerns for the Huset Park group and the promise to them that a committee of their peers would review the part of the plan on 40th Avenue. · Read a letter from a resident dated August 28, 2003 regarding his actions at council meetings. He read his response to the gentleman. All responses are important and the majority of comments have been positive. · Viewed Comcast equipment, an example of HDTV, and the process to keep up with technology. · Attended the North Star Advisory meeting and referenced discussion of passenger cars on the Burlington Northern Railroad line from St. Cloud to Minneapolis. There are Federal funds available, which are contingent on local funds. The group is trying to attract local support and will again request funds from the Legislature next year. · Serves as League of Minnesota Cities liaison on two committees - Improving Local Economies and AMC Municipal Revenues committee, which are important for State finances and future discussions of fiscal disparities. There is discussion of the State's displeasure regarding administrative fines, which our Chief of Police is promoting. Hoefi stated that a speeding ticket of lO-15 miles over the limit is $92 and $85 of that goes to the State. Stated concern that there may be retribution to communities issuing these fines. · Took exception to the Greensheet report of $450,000 received for a new fire truck and the Fire Chief' s account that this should have been obtained 20 years ago. The number of times a ladder truck is needed is very few, but mutual aid with Fridley fills the need. Hope is that this piece of equipment will be available for mutual aid. Fehst stated it wouM be available to aid other communities. Ericson Asked Fehst to tell about the grant monies received for the ladder truck. Fehst stated pride in the Chief and Staff for putting the FEMA grant together. Fridley will soon need to replace their ladder truck and we made discuss the local share with them. This would be a ladder with a hose that can be operated remotely from the ground. We are delighted and wouM make it available to other communities through mutual aid. Wyckoff stated the desire to invite Senator Coleman to our community when we receive the equipment. Fehst included Representative Sabo. Fehst indicated that we applied for $600,000 and will receive $450,000. Wyckoff questioned if this wouM lower our insurance rates. Fehst stated this couM reduce commercial and industrial insurance rates. Nawrocki spoke of his father as afire fighter and the equipment they used. Wyckoff · Referred to two letters of confidence she received from residents, and to one anonymous phone message. She requested the person leave her name and number so she can return the call. Listed the Library Patrons of the Month as the Columbia Heights Schools. There are openings on the Library Board and on the Charter Commission. City Council Minutes September 8, 2003 Page 8 of 13 Williams · Thanked Chief Thompson for his efforts to obtain funding for the ladder fire truck. · Hansen will have a Huset Park area public meeting on Thursday evening, September 11th. · Referred to rumors regarding rent increases at Parkview Villa. This building was finished ten years ago for $2 million, and no payments were made on it and we now owe $6 million. No final decisions have been made. · Stated the difference between a sanitary sewer and a storm sewer. Indoor plumbing goes to the sanitary sewer. If residents have a sump pump hooked to the drain in the basement it is illegal, which may not be intentional, but needs to be changed. · Explained the percentage of tax the City receives from residents and the difference paid by a $100,000 home versus a $300,000 home. · The October Values First Community Core Value is Nonviolence with the definition of Peace and Conflict Resolution. · Pray for the peace and prosperity of our City. Kelzenberg · Very expensive to enroll youth in sport programs and extensive volunteer time is required. We must get community help in this area and would like to see something done for the Recreation Department. Program participants defray costs through fund raising and encouraged residents to support them. · The 500 Club will begin next month. ADJOURNMENT Mayor Wyckoff adjourned the meeting at 9:15 p.m. Patricia Muscovitz, CMC Deputy City Clerk/Council Secretary ORDINANCE NO. 1459 GAS FRANCHISE ORDINANCE CITY OF COLUMBIA HEIGHTS, ANOKA COUNTY, MINNESOTA AN ORDINANCE GRANTING CENTERPOINT ENERGY MINNEGASCO, A NATURAL GAS UTILITY, A DIVISION OF CENTERPOINT ENERGY RESOURCES CORP., A DELAWARE CORPORATION, ITS SUCCESSORS AND ASSIGNS, A NONEXCLUSIVE FRANCHISE TO CONSTRUCT, OPERATE, REPAIR AND MAINTAIN FACILITIES AND EQUIPMENT FOR THE TRANSPORTATION, DISTRIBUTION, MANUFACTURE AND SALE OF GAS ENERGY FOR PUBLIC AND PRIVATE USE AND TO USE THE PUBLIC GROUND OF THE CITY OF COLUMBIA HEIGHTS, MINNESOTA, FOR SUCH PURPOSE; AND, PRESCRIBING CERTAIN TERMS AND CONDITIONS THEREOF. THE CITY COUNCIL OF THE CITY OF COLUMBIA HEIGHTS, ANOKA 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 Columbia Heights, County of Anoka, State of Minnesota. City Council Minutes September 8, 2003 Page 9 of 13 City Utility System. Facilities used for providing public utility service owned or operated by City or agency thereof, including sewer, storm sewer, water service, street lighting and traffic signals, 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. CenterPoint Energy Minnegasco, a Division of CenterPoint Energy Resources Corp., a Delaware Corporation, its successors and assigns including all successors or assigns that own or operate any part or parts of the Gas Facilities subject to this franchise. Gas. Natural gas, manufactured gas, mixture of natural gas and manufactured gas or other forms of natural energy. Gas Facilities. Gas transmission and distribution pipes, lines, ducts, fixtures, and all necessary equipment and appurtenances owned or operated by the Company for the purpose of providing gas energy for public or private use. Non-Betterment Costs. Costs incurred by Company from relocation, removal or rearrangement of Gas Facilities that do not result in an improvement to the Gas Facilities. Notice. A written notice served by any party or parties on any other party or parties. Notice to Company shall be mailed to CenterPoint Energy Minnegasco, V.P. of Regulatory and Supply Service, 800 LaSalle Avenue, Minneapolis, Minnesota 55402. Notice to the City shall be mailed to the City Manager, City of Columbia Heights, 590 - 40th Avenue NE, Columbia Heights, MN 55421-3835. Any party may change its respective address for the purpose of this Ordinance by written notice to the other parties. Public Ground. Land owned or otherwise controlled by the City for park, open space or similar public purpose, which is held for use in common by the public. Public Way. Public right-of-way within the City as defined in MN Stat. § 237.163 subd. 3. SECTION 2. ADOPTION OF FRANCHISE. 2.1 Grant of Franchise. City hereby grants Company, for a period of 20 years from the date this Ordinance is passed and approved by the City, the right to import, manufacture, distribute and sell gas 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. This right includes the provision of Gas that is (i) manufactured by the Company or its affiliates and delivered by the Company, (ii) purchased and delivered by the Company or (iii) purchased from another source by the retail customer and delivered by the Company. For these purposes, Company may construct, operate, repair and maintain Gas Facilities in, on, over, under and across the Public Ways and Public Grounds, subject to the provisions of this Ordinance. Company may do all reasonable things necessary or customary to accomplish these purposes, subject however, to such lawful regulations as may be adopted by separate ordinance and as currently exist under City Right of Way (ROW) Ordinance 1446. The Company shall be notified 60 days in advance of proposed changes to City Ordinance (ROW) 1446. The City and Company shall negotiate in good faith to reach mutually acceptable changes. If the City and Company are unable to agree, disputes will be handled under the terms of Section 2.5 of this Ordinance 2.2 Effective Date; Written Acceptance. This franchise shall be in force and effect from and after its passage of this Ordinance and publication as required by law and its acceptance by Company. If Company does not file a written acceptance with the City within 60 Days after the date the City Council adopts this Ordinance, or otherwise places the City on written notice, at any time, that the Company does not accept all terms of this franchise, the City Council by resolution may either repeal this ordinance or seek its enforcement in a court of competent jurisdiction. 2.3. Service and Gas 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. City Council Minutes September 8, 2003 Page 10 of 13 2.4. Publication Expense. Company shall pay the expense of publication of this Ordinance. 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. Ifa 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. 2.6. Continuation of Franchise. If the City and the Company are unable to agree on the terms of a new franchise by the time this franchise expires, this franchise will remain in effect until a new franchise is agreed upon, or until 90 days after the City or the Company serves written Notice to the other party of its intention to allow the franchise to expire. However, in no event shall this franchise continue for more than one year after expiration of the 20-year term set forth in Section 2.1. 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. Gas Facilities may be located on Public Grounds as determined by the City. Company's construction, reconstruction, operation, repair, maintenance, location and relocation of Gas Facilities shall be subject to other reasonable regulations of the City consistent with authority granted the City to manage its Public Ways and Public Grounds under state law, to the extent not inconsistent with a specific term of this franchise. 3.2. Street Openings. Company shall not open or disturb the surface of 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 the surface of any Public Way or Public Ground without a permit if (i) an emergency exists requiring the immediate repair of Gas Facilities and (ii) Company gives telephone, email or similar notice to the City before commencement of the emergency repair, if reasonably possible. Within two business days after commencing the repair, Company shall apply for any required permits and pay any required fees. 3.3. Restoration. After undertaking any work requiring the opening of any Public Way, the Company shall restore the Public Way in accordance with City Ordinance (ROW) #1446, and other applicable City ordinances consistent with law. Company shall restore the Public Ground to as good a condition as formerly existed, and shall warranty the surface in good condition for twenty-four months thereafter. If Company shall not promptly perform and complete the work, remove all dirt, rubbish, equipment and material, and put the Public Ground in the said condition and after demand to Company to cure, City shall, after passage of a reasonable period of time following the demand, but not to exceed ten days, have the right to make the restoration of the Public Ground 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. The Company shall also post a construction performance bond consistent with the provisions City Ordinance (ROW) # 1446. 3.4. Avoid Damage to Gas Facilities. The Company must take reasonable measures to prevent the Gas Facilities from causing damage to persons or property. The Company must take reasonable measures to protect the Gas Facilities from damage that could be inflicted on the Facilities by persons, property, or the elements. The Company must take protective measures when the City performs work near the Gas Facilities, if given reasonable notice by the City of such work prior to its commencement. 3.5. Notice of Improvements to Streets. The City will give Company reasonable written Notice of plans for improvements to Public Ways where the City has reason to believe that Gas Facilities may affect or be affected by the improvement. The notice will contain: (i) the nature and character of the improvements, (ii) the Public Ways upon which City Council Minutes September 8, 2003 Page 11 of 13 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 is involved, the Contractor's Schedule for the order in which the work is to proceed. The notice will be given to Company with a sufficient length of time, considering seasonal working conditions, in advance of the actual commencement of the work to permit Company to make any additions, alterations or repairs to its Gas Facilities the Company deems necessary, but so as not to delay the planned City Improvements. 3.6 Mapping Information. The Company must promptly provide complete and accurate mapping information for any of its Gas Facilities in accordance with the requirements of City Ordinance (ROW) # 1446. SECTION 4. RELOCATIONS. 4.1. Relocation of Gas Facilities. Relocation of Gas Facilities in Public Ways shall be subject to City Ordinance (ROW) 1446. City may require Company at Company's expense to relocate or remove its Gas Facilities from Public Grounds 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 Grounds. Relocation Gas Facilities in Public Ground shall comply with applicable City ordinances consistent with law. 4.2. Proiects 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. 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 agreement is made that the reasonable Non-Betterment Costs of such relocation and the loss and expense resulting there from will be paid to Company when available to the City. The City is not obligated to pay Company for those portions of its relocation costs for which City has not received federal funding. 4.3. No Waiver. The provisions of Section 4 apply only to Gas Facilities constructed in reliance on a permit or franchise from City and Company does not waive its rights under an easement or prescriptive right or State or County permit. SECTION 5. INDEMNIFICATION. 5.1. Indemnity of City. Company shall indemnify, keep and hold the City, its elected officials, officers, employees and agents free and harmless from any and all claims and actions on account of injury or death to persons or damage to property occasioned by the construction, maintenance, operation, repair, inspection, removal, the issuance of permits, or the operation of the Gas Facilities located in the Public Ways and Public Grounds, unless such injury or damage is the resuk of negligence of the City, its elected officials, employees, officers, or agents. 5.2. 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. The 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 This franchise agreement shall not be interpreted to constitute a waiver by the City of any of its defenses of immunity or limitations on liability under Minnesota Statutes, Chapter 466. SECTION 6. VACATION OF PUBLIC WAYS. The City shall give Company at least two weeks prior written notice of a proposed vacation of a Public Way. The City and the Company shall comply with Minnesota Rules, 7819.3200 and applicable ordinances consistent with law. SECTION 7. 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 Minutes September 8, 2003 Page 12 of 13 This ordinance and the franchise it confers may not be assigned by the Company without the express written consent of the City. SECTION 8. FRANCHISE FEE. 8.1. Form. During the term of the franchise hereby granted, and in addition to any permit, licensing, or other fees, charges or costs being imposed that the City has a hght by statute to impose on the Company for providing gas service or performing work necessary to provide gas service in the City duhng the terms of this franchise, the City may charge the Company a franchise fee. The fee may be (i) a percentage of gross revenues received by the Company for its operations within the City, or (ii) a flat fee per customer based on metered service to retail customers within the City or on some other similar basis, or (iii) a fee based on units of energy delivered to any class of retail customers within the corporate limits of the City. The method of imposing the franchise fee, the percentage of revenue rate, or the flat rate based on metered service may differ for each customer class or combine the methods described in (i) - (iii) above in assessing the fee. The City shall seek to use a formula that provides a stable and predictable amount of fees, without placing the Company at a competitive disadvantage. If the Company claims that the City required fee formula is discriminatory or otherwise places the Company at a competitive disadvantage, the Company shall provide a formula that will produce a substantially similar fee amount to the City and reimburse the City's reasonable fees and costs in reviewing and implementing the formula. The City will attempt to accommodate the Company but is under no franchise obligation to adopt the Company-proposed franchise fee formula and each review will not delay the implementation of the City-imposed fee. 8.2. Separate Ordinance. The franchise fee shall be imposed by separate ordinance duly adopted by the City Council, which ordinance shall not be adopted until at least thirty (30) days after written notice enclosing such proposed ordinance has been served upon the Company. The fee shall become effective ten (10) days after written notice enclosing such adopted ordinance has been served upon the Company by certified mail. 8.3. Collection of Fee. The franchise fee shall be payable not less than quarterly during complete billing months of the period for which payment is to be made. The franchise fee formula may be changed from time to time, however, the change shall meet the same notice requirements and the fee may not be changed more often than annually. Such fee shall not exceed any amount that the Company may legally charge to its customers prior to payment to the City. Such fee is subject to subsequent reductions to account for uncollectibles and customer refunds incurred by the Company. The Company agrees to make available for inspection by the City at reasonable times all records necessary to audit the Company's determination of the franchise fee payments. 8.4. Continuation of Franchise Fee. If this franchise expires and the City and the Company are unable to agree upon terms of a new franchise, the franchise fee, if any being imposed by the City at the time this franchise expires, will remain in effect until a new franchise is agreed upon. SECTION 9. ABANDONED FACILITIES. The Company shall comply with City ordinances, Minnesota Statutes, Section 216D.01 et seq. and Minnesota Rules Part 7819.3300, as they may be amended from time to time. The Company shall maintain records describing the exact location of all abandoned and retired Facilities within the City, produce such records at the City's request and comply with the location requirements of Section 216D.04 with respect to all Facilities, including abandoned and retired Facilities. 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 insure 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 Minutes September 8, 2003 Page 13 of 13 SECTION 11. AMENDMENT-PROCEDURE. Either party to this franchise agreement may at any time propose that the agreement be amended. This Ordinance may be amended at any time by the City passing a subsequent ordinance declaring the provisions of the amendment, which amendatory ordinance shall become effective upon the filing of Company's written consent thereto with the City Clerk within 60 days after the effective date of the amendatory ordinance. This Ordinance shall be in full force and effect from and after thirty days (30) after its passage.