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HomeMy WebLinkAbout1689CenterPoint Energy Gas Franchise Ordinance ORDINANCE NO. 1689 CITY OF COLUMBIA HEIGHTS, ANOKA COUNTY, MINNESOTA AN ORDINANCE GRANTING CENTERPOINT ENERGY RESOURCES CORP. d/b/a CENTERPOINT ENERGY MINNESOTA GAS ("CENTERPOINT ENERGY"), 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 WAYS AND GROUNDS OF THE CITY OF COLUMBIA HEIGHTS, ANOKA COUNTY, 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 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 Resources Corp. d/b/a CenterPoint Energy Minnesota Gas 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 Energy. Gas Energy includes both retail and wholesale natural, manufactured or mixed gas. 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 retail or wholesale use. Page 1 of 7 Notice. A writing served by any party or parties on any other party or parties. Notice to Company shall be mailed to CenterPoint Energy, Minnesota Division Vice President, 505 Nicollet Mall, Minneapolis, Minnesota, 55402. Notice to the City shall be mailed to City Manager, 3989 Central Avenue, Columbia Heights, Minnesota, 55421. Any party may change its respective address for the purpose of this Ordinance by written Notice to the other parties. Ordinance. This gas franchise ordinance, also referred to as the Franchise. Public Way. Any highway, street, alley or other public right-of-way within the City. Public Ground. Land owned or otherwise controlled by the City for utility easements, park, trail, walkway, open space or other public property, which is held for use in common by the public or for public benefit. SECTION 2. ADOPTION OF FRANCHISE 2.1 Grant of Franchise. City hereby grants Company, for a period of 20 (twenty) years from the date this Ordinance is passed and approved by the City, the right to import, distribute and sell Gas Energy 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 and also the right to transport Gas Energy through the limits of the City for use outside of the City limits. 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 reasonable regulations as may be imposed by the City pursuant with state law. 2.2 Effective Date; Written Acceptance. This Franchise shall be in force and effect from and after the passage of this Ordinance and publication as required by law and its acceptance in writing by Company. 2.3. Service and Gas Rates. The terms and conditions of service and the rates to be charged by Company for Gas Energy in City are subject to the exclusive jurisdiction of the Commission. 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 thirty (30) days of the written Notice, the parties may jointly select a mediator to facilitate further discussion. The parties will equally share the fees and expenses of this mediator. If a mediator is not used or if the parties are unable to resolve the dispute within thirty (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. Page 2 of 7 1 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 ninety (90) days after the City or the Company seines written Notice to the other party of its intention to allow Franchise to expire. 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 in a location to be mutually agreed by the City and the Company. The location and relocation of Gas Facilities shall be subject to 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, unless the City is receiving a franchise fee pursuant to this Ordinance, in which case all permit fees will be waived. Permit conditions imposed on Company shall not be more burdensome than those imposed on other public right-of-way users 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 (2) 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 or Public Ground, the Company shall restore the Public Ways or Public Grounds in accordance with Minnesota Rules, 7819.1100. Company shall restore the Public Ground to as good a condition as formerly existed, and shall maintain the surface in good condition for six (6) months thereafter. All work shall be completed as promptly as weather permits, and if Company shall not promptly perform and complete the work, remove all dirt, rubbish, equipment and material, and put the Public Ground in the said condition, the City shall have, after demand to Company to cure and the passage of a reasonable period of time following the demand, but not to exceed five (5) days, the right to make the restoration of the Public Ways or Public Grounds at the expense of Company. Company shall pay to the City the cost of such work done for or performed by the City. The Company shall not be required to post a construction performance bond. 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 Gas Facilities by persons, property or the elements. Per Minnesota Statute § 216D.05, the City must take protective measures when it performs work near the Gas Facilities. 3.5. Notice of Improvements to Streets. The City will give Company reasonable written Notice of plans for improvements to Public Ways and Public Grounds where the City has reason to Page 3 of 7 1 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 or Public Grounds upon which 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 or Public Grounds is involved, the order in which the work is to proceed. The Notice will be given to Company a minimum of eight (8) weeks 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 Company deems necessary. 3.6 Mapping Information. If requested by City, Company must promptly provide complete and accurate mapping information for any of its Gas Facilities in accordance with the requirements of Minnesota Rules 7819.4000 and 7819.4100. 3.7. Emergency Response. As emergency first responders, when a public safety concern exists both the City and Company shall respond to gas emergencies within the City without additional direct fee or expense to either City or Company. SECTION 4. RELOCATIONS 4.1. Relocation in Public Ways. The Company and City shall comply with the provisions of Minnesota Rules 7819.3100 with respect to requests for the Company to relocate Gas Facilities located in Public Ways. 4.2 Relocation in Public Grounds. 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 Public Grounds. Nothing in this Section 4.2 shall be construed so as to invalidate or impair any existing company easements in Public Grounds. 4.3. 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 §§ 161.45 and 161.46. SECTION 5. INDEMNIFICATION 5.1. Indemnity of City. Company shall indemnify and hold the City harmless from any and all liability, on account of injury to persons or damage to property occasioned by the construction, maintenance, repair, inspection, the issuance of permits or the operation of the Gas Facilities located in the Public Ways and Public Grounds. The City shall not be indemnified for losses or claims occasioned through its own negligence or otherwise wrongful act or omission except for losses or claims arising out of or alleging the City's negligence as to the issuance of permits for, or inspection of, Company's plans or work. 5.2. Defense of City. In the event a suit is brought against the City under circumstances where this agreement to indenurify 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, Page 4 of 7 1 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 AND PUBLIC GROUNDS The City shall give Company at least two weeks prior written Notice of a proposed vacation of a Public Ways or Public Grounds. The City and the Company shall comply with Minnesota Rules 7819.3100 and 7819.3200 with respect to any request for vacation. 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. SECTION 8. FRANCHISE FEE 8.1. Form. During the term of the franchise hereby granted, the City may charge the Company a franchise fee. The Company will administer the collection and payment of franchise fees to City in lieu of permit fees or other fees that may otherwise be imposed on the Company in relation to its operations as a public utility in the City. The franchise fee will be collected on a flat fee basis, or by some other method that is mutually acceptable to both City and Company for each retail customer account within the corporate limits of the City. The amount of the fee collected may differ for each customer class. The City will use a formula that provides a stable and predictable amount of fees, without placing the Company at a competitive disadvantage. Such fee shall not exceed any amount that the Company may legally charge to its customers prior to payment to the City and be consistent with the Minnesota Public Utility Commission's March 23, 2011, Order establishing franchise fee filing requirements in Docket No. E,G999/CI-09-970. If the Company claims that the City required fee formula is discriminatory or otherwise places the Company at a competitive disadvantage, the Company will provide a formula that will produce a substantially similar fee amount to the City. If the City and Company are unable to agree, the disagreement shall be subject to the Dispute Resolution provisions of this Ordinance. 8.2. Separate Ordinance. The franchise fee shall be imposed by separate ordinance duly adopted by the City Council. The effective date of the franchise fee ordinance shall be no less than ninety (90) days after written Notice enclosing a copy of the duly adopted and approved ordinance has been served upon the Company by Certified mail. The Company is not required to collect a franchise fee if the terins of the fee agreement are inconsistent with this franchise or state law, provided the Company notifies the City Council of the same within the ninety (90) day period. 8.3. Condition of Fee. The separate ordinance imposing the fee shall not be effective against the Company unless it lawfully imposes a fee of the same or substantially similar amount on the sale of energy within the City by any other energy supplier, provided that, as to such supplier, the Page 5 of 7 1 City has the authority or contractual right to require a franchise fee or similar fee through an agreed - upon franchise. 8.4. 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 and acceptance 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 and be consistent with Minnesota Public Utility Commission's March 23, 2011, Order establishing franchise fee filing requirements in Docket No. E,G999(CI-09-970. Such fee is subject to subsequent reductions to account for uncollectibles and customer refunds incurred by the Company. The Company shall not be responsible to pay City fees that Company is unable to collect under Commission rules or order. The Company, if requested by the city, shall provide a statement summarizing how the franchise fee payment was determined, including information showing any adjustments to the total made to account for any non -collectible accounts, refunds, or error corrections. Company agrees to make available for inspection by City at reasonable times all records necessary to audit Company's determination of the franchise fee payments. 8.5. 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. However, the franchise fee will not remain in effect for more than one (1) year after the franchise expires as stated in Section 2.6 of this Franchise. If for any reason the franchise terminates, the franchise fee will terminate at the same time. SECTION 9. ABANDONED FACILITIES The Company shall comply with Minnesota Rules, Part 7819.3300, as it may be amended from time to time with respect to abandoned facilities in Public Ways. The Company shall maintain records describing the location of all abandoned and retired Gas Facilities within the Public Ways and Public Grounds, produce such records at the City's request and comply with the location requirements of Minnesota Statutes § 216D.04 with respect to all Gas Facilities located in Public Ways and Public Grounds. 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 is inconsistent 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 City and Company as the only parties. No provisions herein shall in any way inure 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 this Ordinance 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. Page 6 of 7 1 SECTION 11. AMENDMENT -PROCEDURE Either party may propose at any time that this Franchise Ordinance be amended. Franchise 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 ninety (90) days after the effective date of the amendatory ordinance. First Reading: September 11, 2023 Offered by: Buesgens Seconded by: James Roll Call: All Ayes Second Reading: September 25, 2023 Offered by: Jacobs Seconded by: Spriggs Roll Call: All Ayes, Marquez Simula absent Attest: ara Ion, City Clerk / Council Secretary Connie Buesgens, Council President Page 7 of 7 1 SUMMARY OF ORDINANCE NO, 1689 AN ORDINANCE GRANTING CENTERPOINT ENERGY RESOURCES CORP. d/b/a CENTERPOINT ENERGY MINNESOTA GAS ("CENTERPOINT ENERGY"), 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 WAYS AND GROUNDS OF THE CITY OF COLUMBIA HEIGHTS, ANOKA COUNTY, MINNESOTA, FOR SUCH PURPOSE; AND, PRESCRIBING CERTAIN TERMS AND CONDITIONS THEREOF The City Council for the City of Columbia Heights, Minnesota adopted Ordinance No. 1689 on September 25, 2023. The purpose of this ordinance is to grant CenterPoint Energy a twenty (20) year non-exclusive franchise to operate, repair and maintain a natural gas distribution system within the city limits of the City of Columbia Heights. The terms and conditions of service and the rates to be charged by CenterPoint Energy for natural gas energy are subject to the exclusive jurisdiction of the Minnesota Public Utilities Commission. The ordinance provides for a method of dispute resolution if either the City of Columbia Heights or CenterPoint Energy asserts that the other party has defaulted in the terms of the gas franchise ordinance. The ordinance provides that all 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. The ordinance also provides that CenterPoint Energy shall indemnify and hold the City of Columbia Heights harmless from liability on account of injury to persons or damage to property occasioned by the construction, maintenance, repair, inspection, the issuance of permits, or the operations of the Gas Facilities located in the City of Columbia Heights's public rights of way and public grounds. This is a summary of Ordinance No. 1689. A copy of the entire text of the Ordinance is available for public inspection during regular office hours at City Hail, by standard or electronic mail, or at www.columbiaheightsmn.gov. Attest: Connie 13uesgens, Council President Sa a ion, City Cleric/Council Secretary AFFIDAVIT OF PUBLICATION CITY OF COLUMBIA HEIGHTS STATE OF MINNESOTA ) SUMMARY OF ss COUNTY OF ANOKA ORDINANCE NO. 1689 AN ORDINANCE GRANTING Rhonda Herberg being duly sworn on an CENTERPOINT ENERGY oath, states or affirms that he/she is the RESOURCES CORP. Publisher's Designated Agent of the newspa- RPOINT ERG C INNESOTAG ENERGY MINNESOTA GAS per(s) known as: ("CENTERPOINT ENERGY"), ITS SUCCESSORS AND ASSIGNS, BSLP Col Hght Frid Life A NONEXCLUSIVE FRANCHISE TO CONSTRUCT, OPERATE, REPAIR AND MAINTAIN with the known office of issue being located FACILITIES AND EQUIPMENT in the county of: FOR THE TRANSPORTATION, ANOKA DISTRIBUTION, MANUFACTURE with additional circulation in the counties of: AND SALE OF GAS ENERGY FOR PUBLIC ANPRIVATE RAMSEY USE AND TO USE THE PUBLIC and has full knowledge of the facts stated WAYS AND GROUNDS OF THE below: CITY OF COLUMBIA HEIGHTS, The newspaper has complied with all of ANOKACOUNTY, MINN(A) A FORRSUCH PURPOOSE;SE; AND, the requirements constituting qualifica- PRESCRIBING CERTAIN TERMS tion as a qualified newspaper as provided AND CONDITIONS THEREOF by Minn. Stat. §331A.02. (B) This Public Notice was printed and pub- The city Council for the city of Columbia Heights, Minnesota ad- lished in said newspaper(s) once each opted Ordinance No. 1669 on Sep - week, for 1 successive week(s); the first tember 25, 2023. insertion being on 10/06/2023 and the last insertion being on 10/06/2023. The purpose er this ordinance is to grant CenterPoint Energy a twenty (20) year non-exclusive MORTGAGE FORECLOSURE NOTICES franchise to operate, repair and Pursuant to Minnesota Stat. §580.033 maintain a natural gas distribution to the publication of mortgage relating PCity system within the city limits of the of Columbia Heights. The foreclosure notices: The newspaper, complies terms and conditions of service with the conditions described in §580.033, and the rates to be charged by subd. 1, clause (1) or (2). If the newspaper's CenterPoint Energy for natural gas known office of issue is located in a county xclu- energy are subject to the sive jurisdiction of the Minnesota adjoining the county where the mortgaged Public Utilities Commission. The premises or some part of the mortgaged ordinance provides for a method of premises described in the notice are located, dispute resolution if either the City a substantial portion of the newspaper's of Columbia Heights or CenterPoint Energy asserts that the other party circulation is in the 1 tter co lity. has defaulted in the terms of the / gas franchise ordinance. The ordi- nance provides that all gas facilities shall be located, constructed, and By: maintained so as not to interfere with the safety and convenience of Designated Age ordinary travel along and over pub ' lic ways. Subscribed and sworn to or affirmed before me on 10/06/2023 by Rhonda Herberg. The ordinance also provides that CenterPoint Energy shall indemni- fy and hold the City of Columbia Heights harmless from liability on account of injury to persons or damage to property occasioned by the construction, maintenance, repair, inspection, the issuance of .w� permits, or the operations of the Gas Facilities located in the City of Notary Public Columbia Heights's public rights of way and public grounds. *� DARLENE MARIE MACPHERSON This is a summary Ordinance No. 1689. A copy of the entire text NOTARY PUBLIC of of the Ordinance is available for My Commis*n Expires Jan 31 2024 public inspection during regular office hours at City Hall, by stan- dard or electronic mail, or at www. columbiaheightsmn.gov. Rate Information: (1) Lowest classified rate paid by commercial users for comparable space: $999.99 per column inch Ad ID 1345852 Attest: Connie Buesgens, Council Presi- dent Sara Ion, City Clerk/Council Sec- retary Published in The Life October 6, 2023 1345852