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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. 2 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 3 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 4 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 7