HomeMy WebLinkAbout10D - Utility Franchise Agreeme
16200 Eagle Creek Avenue S.E.
Prior Lake, MN 55372-1714
MEETING DATE:
AGENDA #:
PREPARED BY:
AGENDA ITEM:
DISCUSSION:
ISSUES:
FINANCIAL
IMPACT:
ALTERNATIVES:
RECOMMENDED
MOTION:
CITY COUNCIL AGENDA REPORT
DECEMBER 19, 2005
10 D
Ralph Teschner, Finance Director
CONSIDER APPROVAL OF A RESOLUTION APPROVING STANDARD GAS AND
ELECTRIC FRANCHISE AGREEMENTS
Introduction
The purpose of this agenda item is to adopt a standard franchise agreement
that would be used for all gas utility companies and a standard franchise
agreement that would be used for all electric utility companies that conduct
business within the city.
History
The City Council has adopted ordinances establishing gas and electric
franchises and respective franchise fees in a previous agenda item
necessitating the adoption of standard franchise agreements.
Current Circumstances
As the City Council is aware, we have established standardized agreements
including our water tower antenna leases, construction contracts, professional
services contracts, developer agreements, private use of public property
agreements and the like. In an effort to minimize differences in our franchise
agreements and maximize conformance with the franchise ordinances, it
would be appropriate for the Council to adopt standard franchise agreements
for both gas and electric companies to operate under.
Standard agreements encourage equity between franchisees. They also
assure the agreements are fully compliant with the Prior Lake City Code.
Finally they save Staff and City Council time and effort in negotiating and
reviewing documents that are individually negotiated.
Standard agreements result in cost savings to the City and promote financial
equity to the franchisees.
The following alternatives are available to the City Council:
1. Adopt a Resolution Approving Standard Gas and Electric Franchise
Agreements
2. Amend the resolution per Council direction.
3. Take no action.
Alternative 1.
www.cityofpriorlake.com
Phone 952.447.4230 / Fax 952.447.4245
16200 Eagle Creek Avenue S.E.
Prior Lake, MN 55372-1714
RESOLUTION OS-xx
RESOLUTION APPROVING A STANDARD FRANCHISE AGREEMENT
FOR GAS AND ELECTRIC UTILITY COMPANIES
Motion By:
Second By:
WHEREAS, The City of Prior Lake has considered the need for establishing non-exclusive
franchises for the operation of gas and electric utility companies within the City; and
WHEREAS, The City of Prior Lake has adopted Sections 312, 313; and 314 of the Prior Lake Code
to approve such franchises; and
WHEREAS, The City of Prior Lake has determined that gas and electric franchises should be
subject to a franchise agreement governing the conditions of location and installation of
such utilities within public city right of way; and
WHEREAS, The best means to manage the activities of these gas and electric utility companies is
under the form of a Standard Franchise Agreement.
NOW THEREFORE, BE IT HEREBY RESOLVED BY THE CITY COUNCIL OF PRIOR LAKE,
MINNESOTA as follows:
1. The recitals set forth above are incorporated herein.
2. The attached Standard Gas Franchise Agreement is approved.
3. The attached Standard Electric Franchise Agreement is approved.
4. The Mayor and City Manager are hereby authorized to enter into such standard agreements
with CenterPoint Energy, Xcel Energy, Minnesota Valley Electric and Shakopee Public Utilities
Commission.
PASSED AND ADOPTED THIS 19TH DAY OF DECEMBER, 2005.
YES
NO
Haugen Haugen
Fleming Fleming
LeMair LeMair
Petersen Petersen
Zieska Zieska
Frank Boyles, City Manager
www.cityofpriorlake.com
Phone 952.447.4230 / Fax 952.447.4245
16200 Eagle Creek Avenue S.E.
Prior Lake, MN 55372-1714
Standard Gas Franchise Agreement
THIS AGREEMENT made this day of , 20_, by and
between the CITY OF PRIOR LAKE, a Minnesota municipal corporation (hereinafter the
"City") and __ ____________ a Minnesota 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 (hereinafter the "Company").
The City and Company for the consideration stated herein, agree as follows:
1. Purpose: The City Council has determined that the City should enter into nonexclusive
franchises 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 Prior Lake in accordance with Sections 312, 313 and 314 of
the Prior Lake City Code, and subject to entering into this contract.
2. Definitions: For purposes of this Agreement, the following capitalized terms listed in
alphabetical order shall have the following meanings:
City. The City of Prior Lake, County of Scott, a Minnesota municipal corporation.
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.______________________, a Minnesota 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 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.
Notice. A writing served by any party or parties on any other party or parties. Notice to
Company shall be mailed to Notice to
the City shall be mailed to City of Prior Lake, 16776 Fish Point Road SE, Prior Lake, MN 55372.
Any party may change its respective address for the purpose of this Ordinance by written notice to
the other parties.
H:ILEASEIStandard Gas Franchise Agreementdoc www.cityofqriorlake.com
Phone 952.447.4230 / Fax 952.447.4245
Public Way. Any street, alley or other public right-of-way within the City.
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.
3. Adoption of Franchise.
3.1 Grant of Franchise. City hereby grants Company, for a period of 10 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. 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 to ordinance or permit requirements and to the
further provisions of this franchise agreement.
3.2 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 informs the City, at any time, that the
Company does not accept this franchise, the City Council by resolution may revoke this franchise
or seek its enforcement in a court of competent jurisdiction.
3.3. 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.
3.4. Nonexclusive Franchise. This is not an exclusive franchise.
3.5. Default. If the Company is in default in the performance of any material part of this
franchise for more than 60 days after receiving written notice from the City of such default, the City
Council may, by ordinance, terminate all rights granted in the present ordinance to the Company. If
the Company is in default as to any provisions of this franchise, the City may, after giving notice to
the Company, take such action as may be reasonably necessary to abate the condition caused by the
default, and the Company agrees to reimburse the City for all its reasonable costs.
3.6. 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 10 year term set forth in Section
3.1.
H:ILEASEIStandard Gas Franchise Agreementdoc
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4. Location and Conditions of Use.
4.1. 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.
4.2. Street Openin2s. 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.
4.3. Restoration. After undertaking any work requiring the opening of any Public Way, the
Company shall restore the Public Way in accordance with Minnesota Rules, part 7819.1100 and
applicable City ordinances consistent with law. 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 days, 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 3.3. The Company shall also provide a certificate of insurance listing the City of Prior
Lake as an additional insured.
4.4. Avoid Dama2e 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.
4.5. 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 the improvements are to be made,
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(iii) the extent of the improvements, (iv) the time when the City will start the work, and (v) ifmore
than one-Public Way is involved, the order in which the work is to proceed. The notice will be
given to Company 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.
4.6 Mappin2 Information. The Company must promptly provide complete and accurate
mapping information for any of its Gas Facilities in accordance with the requirements of Minnesota
Rules Parts 7819.4000 and 7819.4100.
5. Relocations.
5.1. Relocation in Public Ways. The Company shall comply with Minnesota Rules, part
7819.3100 and applicable City ordinances consistent with law.
5.2. Relocation in Public Grounds. City may require Company at Company's expense to
relocate or remove its Gas Facilities from Public Ground 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 Ground. Relocation shall comply with applicable city ordinances consistent with
law.
5.3. Projects with Federal Fundin2. 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.
6. Indemnification.
6.1. 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 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.
6.2. 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 ofthe 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.
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7. 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.
8. Chan2e 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.
9. Franchise Fee.
9.1. Form. During the term of the franchise hereby granted, and in addition to permit fees being
imposed or that the City has a right to impose, 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 othelWise 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.
9.2. 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.
9.3. 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 gas energy within the City by any other gas energy supplier, provided that, as to such
supplier, the City has the authority or contractual right to require a franchise fee or similar fee
through a previously agreed upon franchise.
9.4. 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 requirements
and the fee may not be changed more often than annually. Such fee shall not exceed any amount
H:\LEASE\Standard Gas Franchise Agreementdoc
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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.
9.5. 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 for a period not to exceed one year.
10. 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.
11. Provisions of A2reement.
11.1. Severability. Every section, provision, or part of this Agreement 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 this
Agreement conflicts with the Prior Lake City Code, the provisions of the Prior Lake City Code
shall prevail.
11.2. Limitation on Applicability. This Agreement constitutes a franchise agreement between
the City and Company as the only parties and no provision of this franchise agreement 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 the agreement or of anyone or more of the terms
hereof, or otherwise give rise to any cause of action in any person not a party hereto.
12. Amendment Procedure. Either party to this franchise agreement may at any time
propose that the agreement and authorizing Franchise Ordinance be amended. The Agreement
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 Manager within 60 days after the effective date
of the amendatory ordinance.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date and year
hereinabove first written.
H:ILEASEIStandard Gas Franchise Agreemenrdoc
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CITY OF PRIOR LAKE
COMPANY
By:
Jack G. Haugen, Mayor
Its:
By:
Its:
By:
Frank Boyles, City Manager
By:
Its.
STATE OF MINNESOTA )
)ss.
COUNTY OF SCOTT )
The foregoing instrument was acknowledged before me this day of
,20_, by Jack G. Haugen and Frank Boyles, respectively the Mayor
and City Manager of the City of Prior Lake, a Minnesota municipal corporation, on behalf of the
corporation and pursuant to the authority granted by its City Council.
Notary Public
STATE OF MINNESOTA )
)ss.
COUNTY OF SCOTT )
The foregoing instrument was acknowledged before me this
20_, by , and
the and
day of
of
, on its behalf,
a
Company.
Notary Public
H:ILEASEIStandard Gas Franchise Agreementdoc
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16200 Eagle Creek Avenue S.E.
Prior Lake, MN 55372-1714
Standard Electric Franchise Agreement
THIS AGREEMENT made this day of ,20_, by and
between the CITY OF PRIOR LAKE, a Minnesota municipal corporation (hereinafter the
"City") and____________________________ a Minnesota corporation, its
successors and assigns including all successors or assigns that own or operate any part or parts of
the Electric Facilities subject to this franchise (hereinafter the "Company").
The City and Company for the consideration stated herein, agree as follows:
1. Purpose: The City Council has determined that the City should enter into nonexclusive
franchises to construct, operate" repair and maintain in the City of Prior Lake, Minnesota,
electric distribution systems 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 the public ways and public grounds of the City for such purposes in accordance with Sections
312, 313 and 314 of the Prior Lake City Code, and subject to entering into this contract.
2. Definitions: For purposes of this Agreement, the following capitalized terms listed in
alphabetical order shall have the following meanings:
City. The City of Prior Lake, County of Scott, 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 electric retail rates now vested in the Minnesota Public Utilities Commission.
Company. a Minnesota corporation, its
successors and assigns including all successors or assignees that own or operate any part or parts of
the Electric Facilities subject to this franchise.
Electric Facilities. Electric transmission and distribution towers, poles, lines, guys,
anchors, conduits, fixtures, and necessary appurtenances owned or operated by Company for the
purpose of providing electric energy for public or private use.
Notice. A writing served by any party or parties on any other party or parties. Notice to
Company shall be mailed to . Notice to the City shall
be mailed to City of Prior Lake, 16776 Fish Point Road SE, Prior Lake, MN 55372. Any party may
change its respective address for the purpose ofthis Ordinance by written notice to the other parties.
H\LEASE\Standard Electric Franchise Agreement.doc
www.cityofiorIake.com
Phone 952.447.4230 / Fax 952.447.4245
Public Way. Any street, alley or other public right-of-way within the City.
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.
3. Adoption of Franchise.
3.1. Grant of Franchise. City hereby grants Company, for a period of 10 years from the date
this Ordinance is passed and approved by the City, the right to transmit and furnish electric energy
for light, heat and power 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, 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 to ordinance or permit requirements
and to the further provisions of this franchise agreement.
3.2. 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 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, the City Council by resolution may revoke this
franchise or seek its enforcement in a competent jurisdiction.
3.3. Service, Rates and Area. The service to be provided and the rates to be charged by
Company for electric service in City are subject to the jurisdiction of the Commission. The area
within the City in which Company may provide electric service is subject to the provisions of
Minnesota Statutes, Section 216B. 37 - .40.
3.4. Nonexclusive Franchise. This is not an exclusive franchise.
3.5. Default. If the Company is in default in the performance of any material part of this
franchise for more than 60 days after receiving written notice from the City of such default, the City
Council may, by ordinance, terminate all rights granted in the present ordinance to the Company. If
the Company is in default as to any provisions of this franchise, the City may, after giving notice to
the Company, take such action as may be reasonably necessary to abate the condition caused by the
default, and the Company agrees to reimburse the City for all its reasonable costs.
3.6. 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 10 year term set forth in Section
3.1.
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4. Location and Conditions of Use.
4.1. Location of Facilities. Electric 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 or interfere with the normal operation of any City Utility System. Electric
Facilities may be located on Public Grounds as determined by the City. Company's construction,
reconstruction, operation, repair, maintenance, location and relocation of Electric 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 agreement.
4.2. Street Openin~s. 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 Electric
Facilities and (ii) Company gives telephone notice to the City before, if reasonably possible,
commencement of the emergency repair. Within two business days after commencing the repair,
Company shall apply for any required permits and pay any required fees.
4.3. Restoration. After undertaking any work requiring the opening of any Public Way, the
Company shall restore the Public Way in accordance with Minnesota Rules, part 7819.1100 and
applicable City ordinances consistent with law. Company shall restore 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 days, 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 3.3.
Company shall also provide a certificate of insurance listing the City of Prior Lake as an additional
insured.
4.4. Shared Use of Poles. 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 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 Company because of such use by City.
4.5. Avoid Dama~e to Electric Facilities. The Company must take reasonable measures to
prevent the Electric Facilities from causing damage to persons or property. The Company must take
reasonable measures to protect the Electric Facilities from damage that could be inflicted on the
Facilities by persons, property, or the elements. The Company must take protective measures when
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the City performs work near the Electric Facilities, if given reasonable notice by the City of such
work prior to its commencement.
4.6. Notice of Improvements to Streets. The City must give Company reasonable written
Notice of plans for improvements to Public Ways where the City has reason to believe that Electric
Facilities may affect or be affected by the improvement. The notice must contain: (i) the nature
and character of the improvements, (ii) the Public Ways 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 is involved, the order in which the work is to proceed. The notice must
be given to Company 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 Electric Facilities the Company deems necessary.
4.7. Mappin2 Information. The Company must promptly provide mapping information for
any of its underground Electric Facilities in accordance with Minnesota Rules parts 7819.4000 and
7819.4100.
5. Facilities Relocation.
5.1. Relocation in Public Ways. The Company shall comply with Minnesota Rules, part
7819.3100 and applicable City ordinances consistent with law.
5.2. Relocation in Public Grounds. City may require Company at Company's expense 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 to the existing or proposed
public use of the Public Ground. Such relocation shall comply with applicable ordinances
consistent with law.
5.3. Projects with Federal Fundin2. Relocation, removal, or rearrangement of any Electric
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.
6. Tree Trimmin2. Unless otherwise provided in any permit or other reasonable regulation
required by the City under separate ordinance, Company may trim all trees and shrubs in the Public
Ways and Public Grounds of City to the extent Company finds necessary to avoid interference with
the proper construction, operation, repair and maintenance of any Electric Facilities installed
hereunder, provided that Company shall hold the City harmless from any liability arising therefrom.
7. Indemnification.
7.1. 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 Electric Facilities
located in the Public Ways and Public Grounds. The City shall not be indemnified for losses or
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claims occasioned through its own negligence 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.
7.2. 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; and 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.
8. 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.
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.
10. Chan2e 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.
11. Franchise Fee.
11.1. Form. During the term of the franchise hereby granted, and in addition to permit fees
being imposed or that the City has a right to impose, 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 formula for
a franchise fee based on units of energy delivered may incorporate both commodity and demand
units. 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
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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 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 such review will
not delay the implementation of the City-imposed fee.
11.2. Separate Ordinance. The franchise fee shall be imposed by separate ordinance duly
adopted by the City Council. The fee shall become effective sixty (60) days after written notice
enclosing such adopted ordinance has been served upon the Company by certified mail.
11.3. 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 electric energy within the City by any other electric energy supplier, provided that, as to
such supplier, the City has the authority to require a franchise fee.
11.4. 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
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.
11.5. 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 for a period not to exceed one year.
12. Provisions of A2reement.
12.1. 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; provided, however, that if the City
is unable to enforce its franchise fee provisions for any reason the City will be allowed to amend
the franchise agreement to impose a franchise fee pursuant to statute. Where a provision of this
Agreement conflicts with the provisions of the Ordinance, the provisions of Section 312, 313 and
314 of the Prior Lake City Code shall prevail.
12.2. 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
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 the agreement or of anyone or more of the terms hereof, or
otherwise give rise to any cause of action in any person not a party hereto.
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13. 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 Manager within 60 days after the effective date of the amendatory
ordinance.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date and year
hereinabove first written.
CITY OF PRIOR LAKE
COMPANY
By:
Jack G. Haugen, Mayor
Its:
By:
Its:
By:
Frank: Boyles, City Manager
By:
Its.
STATE OF MINNESOTA )
)ss.
COUNTY OF SCOTT )
The foregoing instrument was acknowledged before me this day of
,20_, by Jack G. Haugen and Frank: Boyles, respectively the Mayor
and City Manager of the City of Prior Lake, a Minnesota municipal corporation, on behalf of the
corporation and pursuant to the authority granted by its City Council.
Notary Public
STATE OF MINNESOTA
)
)ss.
)
COUNTY OF SCOTT
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The foregoing instrument was acknowledged before me this
20_, by , and
fue and
day of
<<<<<m<.....~uu__._ "u.'
a
of
on its behalf,
Company.
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Notary Public