HomeMy WebLinkAboutOrdinance 1053ORDINANCE NO. 1053
BEING AN ORDINANCE GRANTING MINNEGASCO, INC., A MINNESOTA
CORP0~ATION, ITS SUCCESSORS AND ASSIGNS, A NONEXCLUSIVE
FRANCHISE TO CONSTRUCT, OPERATE, REPAIR AND MAINTAIN
F~ACILITIES AND EQUIPMENT FOR THE TRANSPORTATION,
-DISTRIBUTION, MANUFACTURE AND SALE OF GAS E~ERGY FOR PUBLIC
AND PRIVATE USE AND TO USE THE PUBLIC GROUND OF THE CITY OF
COLUMBIA HEIGHTS, MINNESOTA FOR SUCH PURPOSES; AND
PRESCRIBING CERTAIN TE~MS AND CONDITIONS THEREOF.
The City Council of the City of Columbia Heights does ordain:
Section 1: Chapter 12 of Ordinance ~853, City Code of 1977, passed June 21, 1977, which
is currently reserved, shall hereafter read as follows, to-wit:
CHAPTER 12
UTILITY FRANCHISES
ARTICLE I SRA UNIFORM GAS FRANCHISE (MINNEGASCO)
SECTION 1: DEFINITIONS
12.101
12.101(1)
12.101(2)
12.101(~)
12.101(4)
The following terms shall mean:
Cqmpany. Minnegasco, Inc., a Minnesota corporation, its suc-
cessors and assigns.
Gas. Natural gas, manufactured gas, mixture of natural gas and
m~nufactured gas or other forms of gas energy.
Municipality, Municipal Council, Manicipal Clerk. These terms
mean respectively, the City of Columbia Heights, the Council of
the City of Columbia Heights and the Clerk of the City of Columbia
Heights.
Public Ground. Ail streets, alleys, public ways, utility ease-
ments and public grounds of the Municipality as to which it has
'the right to grant the use to the Company.
SECTION 2: FRANCHISE GENERALLY.
12.102(1)
Grant of Franchise. There is hereby granted to the Company, from
the effective date hereof through June 30, 2003, the right to
import, manufacture, transport, distribute and sell gas for public
and private use in the Municipality, and for these purposes to
construct, operate, repair and maintain in, on, over, under and
across the Public Ground of the Municipality, all facilities and
equipment used in connection therewith, and to do all things which
are necessary or customary in the accomplishment of these objec-
rives, subject to zoning ordinances, ocher applicable ordinan-
ces, permit procedures, customary practices, and the provisions
of this franchise.
12.102(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:
30 days from and after the passage of Chis Ordinance;
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
consecutive weeks in the official newspaper of the City.
12.102(3) Nonexclusive Franchise. This is not an exclusive franchise.
12. lo2(4)
Franchise Fee. The Company~ay be required to pay co the
Hunicipality, in the manner and at a rate prescribed by a
separate ordinance, a fee determined by collections from sales
of Gas, but not to exceed SZ of the Companyts Sross revenue
from the sale of Gas within the Hunictpallty. Such ordinance
may be adopted, amended, repealed or readopted at any time
during the term of this franchise. The fee, if required, shall
be effective 90 days after written notice of the ordinance to
the Company. No such fee shall be effective as Co sales ~ade
before January 1, 1984. The fee shall be separately stated on
sas bills rendered to customers within the Hunicipalicy.
12.102($)
Publication Expen.se. The expense of publication of this ordi-
nance shall be paid by the Company.
12.102(6)
Default. If the Company is in default in the performance of
any material part of this franchise for more than 90 days after
receiving written notice from the Hunicipality of such default,
the Hunicipal Council may, by ordinance, terminate all rights
granted hereunder to the Company. The notice of default shall
be in vritin8 and shall specify the provisions of this
franchise under which the default is claimed and state the
basis therefor. Such notice shall be served on the Company by
personally delivering it to an officer thereof at its principal
place of business in Ninnesota.
If the Company is in default as to any part of this franchise,
the Hunicipality may, after reasonable notice to the Company
and the failure of the Company to cure'the default within a
reasonable time, take such action as may be reasonably
necessary to abate the condition caused by the default, and the
Company agrees to reimburse the Nunicipality for all its reaso-
nable costs and for its costs of collection, including attorney
fees.
Nothing in this section shall bar the Company from challenging
the Hunicipality's claim that a default has occurred. In the
event of disagree~ent over the existence of a default, the bur-
den of proving the default shall be on the ltunicipality.
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SECTION 3
12. 103 (1)
CONDITIONS OF USE.
Use of Public Ground. All utility facilities and equipment of
the Company shall be located, constructed, installed and main-
tained so as not to endanger or unnecessarily interfere with
the usual and customary traffic, travel, and use of public
ground, and shall be subject to permit conditions of the
Municipality. The permit conditions may provide for the right
of inspection by the Municipality, and the Company agrees to
mak~ its facilities and equipment available for inspection at
all reasonable times and places.
12.103(2) Permit Required. The Company shall not open ok disturb the
surface of any public ground for any purpose without first
having obtained a permit from the Municipality, for which the
Municipality may impose a reasonable fee to be paid by the
Company. The permit conditions imposed on the Company shall'
not be more burdensome than those imposed on other utilities
for similar facilities or work. The mains, services and other
property placed pursua, nt to such permit shall be located as
shall be designated by the Municipality.
The Company may, however, open and disturb the surface of any
public ground without a permit where an emergency exists
requiring the immediate repair of its facilities. The Company
in such event shall request a permit not later than the second
working day thereafter.
12.103(3)
Restoration. Upon completion of any work requiring the opening
of any Public Ground, the Company shall restore the same,
including paving and its foundations, to as good condition as
formerly, and shall exercise reasonable care to maintain the
same for two years thereafter in good condition. Said 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 Ground in good condition, the Municipality shall have
the right to put it in good condition at the expense of the
Company; and the Company shall, upon demand, pay to the
Municipality the cost of such work done for or performed by the
Municipality, including its administrative expense and
overhead, together with ten percent additional as liquidated
damages. This remedy shall be in addition to any other remedy
available to the Municipality.
12.103(4)
Relocation of Utility Facilities. The Company shall promptly,
with due regard for seasonal working conditions, permanently
relocate its facilities or equipment whenever the Municipality
orders such relocation. If the relocation is a result of the
proper exercise of the police power in grading, regrading,
changing the location or shape of or otherwise improving any
Public Ground or constructing or reconstructing any sewer or
water system therein, the relocation shall be at the expense of
the Company. If the relocation is not a result of the proper
exercise of the police power, the relocation shall be at the
expense of the Municipality.
If such relocation is done without an agreement first being made
as to who shall pay the relocation cost, such relocation of the
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12.103(5)
12.103(6)
SECTION 4
facilities by the Company shall not be construed as a waiver of
its right to be reimbursed for the relocation cost. If the
Company claims that it should be reimbursed for such relocation
costs, it shall notify the Municipality within thirty days after
receipt of such order. The Municipality shall give the Company
reasonable notice of plans requiring such relocation.
Nothing contained in this subsection shall require the Company to
remove and replace its mains or to cut and reconnect its service
pipe running from the main to a customer's premises at its own
expense where the removal and replacement or cutting and recom-
necting is made for the purpose of a more expeditious operation
for the construction or reconstruction of underground facilities;
nor shall anything contained herein relieve any person from liabi-
lity arising out of the failure to exercise reasonable care to
avoid damaging the Company's facilities while performing any work
in any Public Ground.
Relocation When Public Ground Vacated. The vacation of any Public
Ground shall not operate to deprive the Company of the right to
operate and maintain its facilities therein. Unless ordered under
Section 12.103(4), the Company need not relocate until the reaso-
nable cost of relocating and the loss and expense resulting from
such relocation are first paid to the Company. When the vacation
is for the benefit of the Municipality in the furtherance of a
public purpose, the Company shall relocate at its own expense.
Street Improvements, Paving or Resurfacing. The Municipality
shall give the Company reasonable written notice of plans for
street improvements where paving or resurfacing of a permanent
nature is involved. The notice shall contain the nature and
character of the improvements, the streets upon which the improve-
ments are to be made, the extent of the improvements and the time
when the Municipality will start the work, and, if more than one
street is involved, the order in which this work is to proceed.
The notice shall be given to the Company a sufficient length of
time, considering seasonable working conditions, in advance of the
actual commencement of the work to permit the Company to make any
additions, alterations or repairs to its facilities the Company
deems necessary.
In cases where streets are at final width and grade, and the
Municipality has installed underground sewer and water mains and
service connections to the property line abutting the streets
prior to a permanent paving or resurfacing of such streets, and
the Company's main is located under such street, the Compan~ ma~
be required to install gas service connections prior to such
paving or resurfacing, whenever it is apparent that gas service
will be required during the five years following the paving or
resurfacing ·
MISCELLANEOUS PROVISIONS
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12.104(1)
12.104(2)
12.104(3)
12.104(4)
12. 104(5
Indemnification. The Company shall indemnify, keep and hold the
Municipality, its elected officials,-officers, employees,
agents free and harmless from any and all claims and actions on
account of injury or death of persons or damage to property occa-
sioned by the construction, maintenance, repair, removal, or
operation of the Company's property located in, on, over, under,
or across the public ground of the Municipality, unless such
injury or damage is the result of the negligence of the
Municipality, its elected officials, employees, officers, or
agents. The Municipality shall not be entitled to reimbursement
for its costs incurred prior to notification to the Company of
claims or actions and a reasonable opportunity for the Company to
accept and undertake the defense.
If a claim or action shall be brought against the Mmnicipality
under circumstances where indemnification applies, the Company, at
its sole cost and expense, shall defend the Mmmicipality if writ-
ten notice of the claim or action is promptly given to the Company
within a period wherein the Company is not prejudiced by lack of
such notice. The Company shall have complete control of such
claim or action, but it may not settle without the consent of the
Municipality, which shall not be unreasonably withheld. This sec-
tion is not, as to third parties, a waiver of any defense or immu-
nity otherwise available to the Municipality, and the Company in
defending any action on behalf of the Municipality shall be
entitled to assert every defense or immunity that the Municipality
could assert in its own behalf.
Assignment. The Company, upon notice to the Municipality, shall
have the right and authority to assign all rights conferred upon
it by this franchise to any person. The assignee of such rights,
by accepting such assignment, shall become subject to the terms
and provisions of this franchise.
Change in Form of Government. Any change in the form of govern-
ment of the Municipality shall not affect the validity of this
franchise. Any governmental unit succeeding the Municipality
shall, without the consent of the Company, automatically succeed
to all of the rights and obligations of the Municipality provided
in this franchise.
Severability. If any portion of this franchise is found to be
invalid for any reason whatsoever, the validity of the rest of
this franchise shall not be affected.
Notices. Any notice required by this framchise shall be
ficient if, in the case of notice to the Company, it is delivered
to Minnegasco, Inc., Attention: Vice President, Minnesota
Operations, 201 South Seventh Street, Minneapolis, Minnesota
55402, and, in the case of the Municipality, it is delivered to
City of Columbia Heights, Attention: City Manager, 590 - 40th
Avenue Northeast, Columbia Heights, Minnesota 55421.
Section 2:
SECTION 5 CHARTER REQUIR~ENTS
12.105(1)
That the Company shall be subject to and will perform on its l~rt
all the terms of Sectio~ns, 94 to 102, .inclusive of the Charter of
the City.
12.105(2)
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_~y
the City to acquire the public utility exercising such franchise,
any return on account of the franchise or its value.
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 i~strument, 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.
12.105(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 remo-
val 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 pur-
pose used.
12. lO5 (5)
This franchise and every extension or renewal thereof must be
accepted in writing by the Company within 30 days after its
passage by the Council and before its submission 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, conditions, and limitations contained in this
ordinance granting the franchise as well as of the provisions of
the Charter of the City of Columbia Heights.
This Ordinance shall be in full force and effect from and after the c~npletion
of all three of the following events, to-wit:
(a) ~0 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 consecutive
weeks in the official newspaper of the City.
~=~ rst reading:
~cond reading:
Date of passage:
September 12, 1983
September 26, 1983
September 26, 1983
Offered by: Hentges
Seconded by: Hovland
Roll call: ~, All ayes
Bruce ~'~ Nawr6cki, Mayor
nne Student, Secretary to the Council
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