HomeMy WebLinkAboutOrdinance 1146ORDINANCE NO. 1146
BEING AN ORDINANCE AMENDING ORDINANCE NO. 853, CITY CODE OF 1977,
GRANTING TO NORTHERN STATES POWER COMPANY, A MINNESOTA CORPORATION,
ITS SUCCESSORS AND ASSIGNS, PERMISSION TO CONSTRUCT, OPERATE, REPAIR
AND MAINTAIN IN THE CITY OF COLUMBIA HEIGHTS, 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 PUBLIC
WAYS AND PUBLIC GROUNDS OF THE CITY FOR SUCH PURPOSES.
The City of Columbia Heights does ordain:
Section l:
Chapter 12, Article II of Ordinance No. 853, City Code of 1977,
passed June 21, 1977, which is currently reserved, shall hereafter
read as follows:
Article II SRA Uniform Electric Franchise (NSP)
Section l: DEFINITIONS
12.201
The following terms shalI mean:
12.201(1)
"City" In this Article, "City" means the City of Columbia Heights,
located in the County of Anoka, State of Minnesota.
12.201(2)
"City Utility System" means the facilities used for providing sewer,
water, or any other public utility service owned or operated by City
or agency thereof.
12.201(3)
"Company" means Northern States Power Company, a Minnesota cor-
poration, its successors and assigns.
12.201(4)
"Notice" means a writing served by any party or parties on any other
party or parties. Notice to Company shall be mailed to the Division
General Manager thereof at 4501 68th Ave. N., Brooklyn Center, MN
55429. Notice to City shall be mailed to the City Clerk.
12.201(5)
"Public Way" means any street, alley, or other public right-of-way
within the City.
12.201(6)
"Public Ground" means land owned by the City for park, open space or
similar purpose, which is held for use in co~on by the public.
12.201(7)
"Electric Facilities" means electric transmission and distribution
towers, poles, lines, guys, anchors, ducts, fixt~-es, and necessary
appurtenances owned or operated by the Company for the purpose of
providing electric energy for public use.
SECTION 2:
12.202(1)
FRANCHISE
Grant of Franchise. City hereby grants Company, for a period of
twenty years from April 1, 1987, 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 Ordi-
nance. Company may do all reasonable things necessary or custcmary
to accomplish these purposes, subject, however, to zoning ordinances,
other applicable ordinances, permit procedures, and to the further
provisions of this franchise.
12.202(2)
Effective Date; Written Acceptance. This franchise shall be in full
force and effect from and after the completion of all three of the
following events, to wit:
(a) 30 days from and after the passage of this Ordinance.
(b) Acceptance in writing by Company within 30 days after the
passage of this Ordinance; and
(c) This Ordinance has been published once per week for four con-
secutive weeks in the official newspaper of the City.
12.202(3)
Service Rates and Area. The service to be provided and the rates to
be charged by Company for electric service in City currently are
subject to the jurisdiction of the Minnesota Public Utilities
C~,,~ission. The area within the City in which the Company may pro-
vide electric service currently is subject to the provisions of
Minnesota Statutes, Section 216B.40.
12.202(4)
Publication Expense. The expense of publication of this Ordinance
shall be paid by the Company.
12.202(5)
Default. 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. If the dispute is not
resolved within 30 days of the written notice, either party may com-
mence 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
12.203(1)
Location of Facilities. Electric Facilities shall be located and
constructed so as not to interfere with the safety and convenience
of ordinary travel along and over Public Ways and they shall be
located on Public Grounds as determined by the City. The Company's
construction, reconstruction, operation, repair, maintenance and
location of Electric Facilities shall be subject to other reasonable
regulations of the City.
12.203(2)
12.203(3)
12.203(4)
12.203(5)
SECTION 4:
12.204(1)
Field Locations. The Company shall provide field locations for any
of its underground Electric Facilities within a reasonable period of
time on request by the City. The period of time will be considered
reasonable if it compares favorably with the average time required
by the cities in the same county to locate municipal underground
facilities for the Company.
~treet Openings. The Company shall not open or disturb the paved
surface of any Public Way or Public Ground for any purpose without
first having obtained permission from the City, for which the City
may impose a reasonable fee. Permit conditions imposed on the
Company shall not be more burdensome than those imposed on other
utilities for similar facilities or work. The Company may, however,
open and disturb the paved surface of any Public Way or Public
Ground without permission from the City where an omergency exists
requiring the i~ediate repair of Electric Facilities. In such
event the Company shall notify the City by telephone to the office
designated by the City before opening or disturbing a paved sur-
face of a Public Way or Public Ground. Not later than the second
working day thereafter, the Company shall obtain any required per-
mits and pay any required fees.
Restoration. After undertaking any work requiring the opening of
any Public Way or Public Ground, the Company shall restore the same,
including paving and its foundation, to as good condition as for-
merly existed, and shall maintain the same in good condition for two
years thereafter. The work shall be completed as promptly as
weather permits, and if the 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 the 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 the Company. The Company shall pay to the City the cost of such
work done for or performed by the City, including its administrative
expense and overhead, plus ten percent additional as liquidated
damages. This remedy shall be in addition to any other remedy
available to the City.
Shared Use of Poles. The 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 the 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 the Company because of such use by City.
RELOCATIONS
Relocation of Electric Facilities in Public Ways. Except as pro-
vided in Section 12.204(3), if the City determines to vacate for a
City improvement project, or 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 the Company to relocate its
12.204(2)
12.204(3)
12.204(4)
SECTION 5:
12.205
Electric Facilities located therein. The Company shall relocate its
Electric Facilities at its own expense. The City shall give the
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 relo-
cation is ordered within five years of a prior relocation of the
same Electrical Facilities, which was made at Company expense, the
City shall reimburse Company for non-betterment expenses 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 pre-
viously 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 reconnect at its own expense
its facilities where such relocation, removal, replacement or recon-
struction 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.
Relocation of Electric Facilities in Public Ground. Except as may
be provided in Section 12.204(3), City may require the Company 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 of the public use to which the
Public Ground is or will be put. The relocation or removal shall be
at the Company's expense. The provisions of 12.204(2) apply only to
Electric Facilities constructed in reliance on a franchise and the
Company does not waive its rights under an easement or prescriptive
right.
Projects with State or Federal Funding. Relocation, removal, or
rearrangement of any Company facilities made necessary because of
the extension into or through City of a federally-aided highway pro-
ject shall be governed by the provisions of Minnesota Statutes,
Section 161.N6 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 facilities when a
Public Way is vacated, improved or realigned because of a renewal of
a redevelopment plan which is financially subsidized in whole or in
part by the Federal Goverr~nent or any agency thereof, unless the
reasonable non-betterment costs of such relocation and the loss and
e×pense 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.
Liability. Nothing in the Ordinance relieves any person from
liability arising out of the failure to exercise reasonable care to
avoid damaging Electric Facilities while performing any activity.
TREE TRIMMING
The Company may trim all trees and shrubs in the Public Ways and
Public Grounds of City interfering with the proper construction,
operation, repair and maintenance of any Electric Facilities
installed hereunder, provided that the Company shall save the City
harmless from any liability arising therefrom, and subject to permit
or other reasonable regulation by the City.
SECTION 6:
12.206(1)
12.206(2)
SECTION 7:
12.207
SECTION 8:
12.208
INDEMNIFICATION
The 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 City. The City shall not be
indemnified for losses or claims occasioned through its own negli-
gence except for losses or claims arising out of or alleging the
City's negligence as to the issuance of permits for, or inspection
or, the 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 per-
formance is nevertheless ordered or directed by City after notice of
Company's determination.
In the event a suit is brought against the City under circumstances
where this agreement to indemnify applies, the Company at its sole
cost and expense shall defend the City in such suit if written
notice thereof is promptly given to the Company within a period
wherein the Company is not prejudiced by lack of such notice. If
the Company is required to indemnify and defend, it will thereafter'
have control of such litigation, but the 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 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.
VACATION OF PUBLIC WAYS
The City shall give the Company at least two weeks' prior written
notice of a proposed vacation of a Public Way. Except where
required for a City street or other 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 Electrical 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 the Company for failure to specifically preserve
a right-of-way, under Minnesota Statutes, Section 160.29.
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 the Company, succeed to all
of the rights and obligations of the City provided in this
Ordinance.
SECTION 9:
12.209(1)
FRANCHISE FEE
Separate Ordinance. During the term of the franchise hereby
granted, and in lieu of any permit or other fees being imposed on
the Company, the City may impose on the Company a franchise fee of
not more than five percent of the Company's gross revenues as
hereinafter defined. 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 the Company
by certified mail. The fee shall not become effective until at
least 60 days after written notice enclosing such adopted ordinance
has been served upon the Company by certified mail.
12.209(2)
Terms Defined. The term "gross revenues" means all sums, excluding
any surcharge or similar addition to the Company's charges to custo-
mers for the purpose of reimbursing the Company for the cost
resulting from the franchise fee, received by the Company from the
sale of electricity to its retail customers within the corporate
limits of the City.
12.209(3)
Collection of the Fee. The franchise fee shall be payable not less
often than quarterly, and shall be based on the gross revenues of
the Company during complete billing months during the period for
which payment is to be made. The percent fee may be changed by
ordinance from time to time; however, each change shall meet the
same notice requirements and the percentage may not be changed more
often than ann,~]ly. Such fee shall not exceed any amount which the
Company may legally charge to its customers prior to payment to the
City by imposing a surcharge equivalent to such fee in its rate for
electric service. The Company may pay the City the fee based upon
the surcharge billed subject to subsequent reductions to account for
uncollectibles or customer refunds. The time and manner of
collecting the franchise fee is subject to the approval of the
Public Utilities Commission, which the Company agrees to use best
efforts to obtain. The Company agrees to make its gross revenues
records available for inspection by the City at reasonable times.
12.209(4)
Conditions on the Fee. The separate ordinance imposing the fee
shall not be effective against the Company unless it lawfully imposes
and the City quarterly or more often collects a fee or tax of
the same or greater percentage 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 franchise fee or tax shall be applicable
to energy sales for any energy use related to heating, cooling, or
lighting, as well as to the supply of energy needed to run machinery
and appliances on premises located within or adjacent to the City,
but shall not apply to energy sales for the purpose of providing
fuel for vehicles.
SECTION 10: SEVERABILITY
If any portion of this franchise is found to be invalid for any
reason whatsoever, the validity of the remainder shall not be affected.
12.211
This Ordinance may be amended at any time by the City passing a sub-
sequent ordinance declaring the provisions of the amendment, which
amendatory ordinance shall beccme effective upon the filing of the
Company's written consent thereto with the City Clerk within 30 days
after the effective date of the amendatory ordinance.
SECTION 12: PREVIOUS FRANCHISES SUPERSEDED
12.212
This franchise supersedes any previous electric franchise granted to
the Company or its predecessor.
SECTIO~ 13 CHARTER REQUIRES
12.213(1)
12.213(2)
Except for matters currently subject to the regulation of the
Minnesota Public Utilities C~rm, ission as referred to in §12.202(3),
the Company shall be subject to and will perform on its part
all the terms of Sections 94 to 102, inclusive, of the Charter of
the City and the provisions of this Section 13.
That the Company shall not issue any capital stock on account of the
franchise or the value thereof, and that the Company shall have no
right to receive, upon condemnation proceedings brought by the City
to acquire the public utility exercising such franchise, any return
on account of the franchise or its value.
12.213(3)
That no sale or lease of said franchise shall be active until the
assignee or leasee shall have filed in the office of the City Clerk
an instrument, duly executed, reciting the fact of such sale or
lease, accepting the terms of the franchise, and agreeing to perform
all the conditions required of the Company thereunder.
12.213(4)
That every grant in said franchise contained of permission for the
erection of poles, masts, or other fixtures in the streets and for
the attachment of wires thereto, or for the laying of tracks in, or
of pipes or conduits, under places of any permanent or semi-
permanent fixtures whatsoever, shall be subject to the condition
that the council shall have the power to require such alterations
therein, or relocation or rerouting thereof, as the council may at
any time deem necessary for health, or convenience of the public,
and particularly that it shall have the power to require the removal
of poles, masts, and other fixtures bearing wires and the placing
underground of poles, masts, and of other fixtures bearing wires and
the placing underground of all wires for whatsoever purpose used.
12.213(5)
This franchise and every extension of renewal thereof must be
accepted in writing by the Ccmpany within 30 days after its passage
by the Council and before its su~nission to a vote of the people in
case of a referendum. This franchise shall not be binding upon the
City until its acceptance by the Company. Such acceptance shall be
construed to be an acceptance of and consent to all the terms, con-
ditions, and limitations contained in this ordinance granting the
franchise as well as of the provisions of the Charter of the City of
Columbia Heights.
Section 2:
This Ordinance shall be in full force and effect from and after
thirty (BO) days after its passage. The franchise shall be in full
force and effect as been heretofore provided in this Ordinance.
First reading:
Second reading:
Date of passage:
April 13, 1987
April 27, 1987
April 27, 1987
Offered by: Carlson
Seconded by: Peterson
Roll ca&l: All ayes
Anne Student, Coun~l Secretary
Bruee~G. Nawrocki, Mayor