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HomeMy WebLinkAbout312: Gas FranchiseBusiness Regul ations SECTION 312 GAS FRANCHISE S : UBSECTIONS 312.100 D EFINITIONS 312.200 A F DOPTION OF RANCHISE 312.300 R W M IGHT OF AY ANAGEMENT 312.400 C F G HANGES IN ORM OF OVERNMENT 312.500 F R ACILITIES ELOCATION 312.600 F F RANCHISE E E 312.700 T T REE RIMMING 312.800 I NDEMNIFICATION 312.900 V P W ACATION OF UBLIC AYS 312.1000 A F BANDON ACILITIES 312.1100 P O ROVISIONS OF RDINANCE 31 2 .1200 A P MENDMENT ROCEDURE 312 .100: DEFINITIONS For purposes of this Ordinance, the following capitalized terms listed in alphabetical order shall have the following meanings: City. The City of Prior Lake, County of Scott, State of Minneso ta. 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, l ighting, or other forms of energy. Commission. In the case of utilities subject to the regulation by 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. Municipally owned utilities and cooperatives shall be subject to applicable regulations. Company. A partnership or corporation, its successors and as signs 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 appurtenance s 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. City of Prior Lake 312/p 1 Business Regul ations Public Utility . Any company organized for the purpose of providing gas utility service including municipally - owned utilities and gas cooperatives. Public Way. Any street, alley or other public right - of - way within the City including all public utility easements. Public Ground. Land owned or otherwise controlled by the Cit y for park, open space or similar public purpose, which is held for use in common by the public. 312 .200: ADOPTION OF FRANCHIS E Grant of Franchise . 312 .201 City hereby grants Company, for a period of 2 0 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 cons truct, 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, su bject however, to such reasonable regulations as may be imposed by the City pursuant to ordinance and to the further provisions of this franchise agreement. Effective Date; Written Acceptance 31 2 .202 . 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 res olution may revoke this franchise. Service and Gas Rates . 312 .203 The service to be provided and the rates to be charged by Company for gas service in City may be subject to the jurisdiction of the Commission. The area within the City in which Company ma y provide gas service is subject to the provisions of Minnesota Statutes, Section 216B. 37 - .40. Nonexclusive Franchise 312 .204 . This is not an exclusive franchise. Default 312 .205 . If either party asserts that the other party is in default in the p erformance of any obligation hereunder, the complaining party shall notify the other party of the default, the desired remedy, and the time within which the default or obligation must be remedied. The notification shall be in writing. 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 30 days of the written notice, the parties may jointly select a mediator to facilitate further discussion. The partie s 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 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 City of Prior Lake 312/p 2 Business Regul ations equity for breach of contract, or either party may take any other action permitted by law . Continuation of Franchise. 312 .206 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 in tention to allow the franchise to expire. However, in no event shall this franchise continue for more than one year after expiration of the 2 0 year term set forth in Section .201. 312 .300 RIGHT OF WAY MANAGEM ENT Location of Facilities 312 .301 . Gas Fa cilities 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 the normal operation of any City Utility System previously installed therei n. 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 permits if required by a separate ordinanc e and 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. Field Locations. 312.302 C ompany shall provide field locations for its underground Gas Facilities within City consistent with the requirements of Minnesota Statutes, Chapter 216D and Minnesota Rules parts 7819.4000 and 7819.4100. St reet Openings. 312.303 Company shall not open o r 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 n ot 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 permission from the City if (i) an emergency exists requiring the imm ediate repair of Gas 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 an d pay any required fees. Restoration 312 .304 . 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 l aw. 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 promp tly 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 City of Prior Lake 312/p 3 Business Regul ations 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 ava ilable to the City for noncompliance with this Section 3.3. The City hereby waives any requirement for Company to post a construction performance bond, certificate of insurance, letter of credit or any other form of security or assurance that may be requi red, under a separate existing or future ordinance of the city, of a person or entity obtaining the City’s permission to install, replace or maintain facilities in a Public Way. Avoid Damage to Gas Facilities 312 .30 5 . The Company must take reasonable mea sures to prevent the Gas Facilities from causing damage to persons or property. 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. Nothing in this Ordinance relieves any person from liability arising out of the failure to exercise reasonable care to avoid damaging Gas Facilities while performing any activity. Notice of Improvements to Streets 312 .30 6 . The City must give Company reas onable written Notice of plans for improvements to Public Ways or Public Ground where the City has reason to believe that Gas Facilities may affect or be affected by the improvement. The notice must contain: (i) the nature and character of the improvemen ts, (ii) the Public Ways or Public Ground 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 Gas Facilities the Company deems necessary. Mapping Information 312 .30 7 . The Company must promptly provide mapping information for any of its underground Gas Facilities in accordance with Minnesota Rules parts 7819.4000 and 7819.4100. 312 .400 CHANGE IN FORM OF GO VERNMENT . 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. 312 .500 FACILITIES RELOCATION Relocation in Public Ways 312 .501 . The Company shall comply with Minnesota Rules, part 7819.3100 and applicable City ordinances consistent with law. If a relocation is ordered within five years of a prior rel ocation of the same Gas Facilities, which was made at Company expense, the City shall reimburse Company for non - betterment City of Prior Lake 312/p 4 Business Regul ations costs on a time and material basis, provided that if a subsequent relocation is required because of the extension of a City Utility S ystem to a previously unserved area, Company may be required to make the subsequent relocation at its expense. Nothing in this Ordinance requires Company to relocate, remove, replace or reconstruct at its own expense its Gas Facilities where such relocati on, removal, replacement or reconstruction is solely for the convenience of the City and is not reasonably necessary for the construction or reconstruction of a Public Way or City Utility System or other City improvement. Relocation in Public Grou nds 312 .502 . 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 th e Public Ground. Projects with Federal Funding 312 .503 . Relocation, removal, or rearrangement of any Company Gas Facilities made necessary solely 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, as supplemented or amended. It is understood that the right herein granted to Company is a valuable right. City shall not order Company to remove or relocate its Gas Facilities when a Public Way is vacat ed, improved or realigned because of a renewal or a redevelopment plan which is financially subsidized in whole or in part by the Federal Government or any agency thereof, unless the reasonable non - betterment costs of such relocation and the loss and expen se resulting therefrom are first paid to Company, but the City need not pay those portions of such for which reimbursement to it is not available. No Waiver. 312 .504 The provisions of this franchise apply only to facilities constructed in reliance on a f ranchise from the City and shall not be construed to waive or modify any rights obtained by Company for installations within a Company right - of - way acquired by easement or prescriptive right before the applicable Public Way or Public Ground was established , or Company’s rights under state or county permit. This provision is unrelated to the collection of any franchise fee imposed by the City. 312 . 6 00 FRANCHISE FEE Form 312 . 6 01 . During the term of the franchise hereby granted, and in lieu of any other p ermit fees being imposed or that the City has a right to impose, the City may charge the Company a franchise fee . The Company shall collect the amounts indicated in a Fee Schedule set forth in a separate ordinance from each customer in the designated Comp any Customer Class. “Customer Class” shall refer to the classes listed on the Fee Schedule and as defined or determined in Company’s gas tariffs on file with the Commission. “Fee Schedule” refers to the schedule below setting forth the various customer c lasses from which a franchise fee would be collected if a separate ordinance were implemented immediately after the effective date of this franchise agreement. The Fee Schedule in the separate ordinance may include new Customer Classes added by Company to its gas tariffs after the effective date of this franchise agreement. City of Prior Lake 312/p 5 Business Regul ations Separate Ordinance 312 . 6 02 . The franchise fee shall be imposed by separate ordinance duly adopted by the City Council and served upon Company by certified mail. The fee shall not bec ome effective until the beginning of a Company billing month at least 60 days after written notice enclosing such adopted ordinance had been served upon Company by certified mail. Condition of Fee 312 . 6 03 . The separate ordinance imposing the fee shall no t 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 City has the authority to require a franchise fee. Collection of Fee 312 . 6 04 . The franchise fee shall be payable quarterly and shall be based on the amount collected by Company during complete billing months during the period for which payment is to be made by imposing a surcharge equal to the designated franchise fee for the applicable customer classification in all customer billings for gas service in each class. The payment shall be due the last business day of the month following the period for which the payment is made. The franchise fee may be changed by ordinance from time to time; however, each change shall meet the same notice requirements to the Company and not occur more often than annually and no change shall require a collection from any customer for gas service in excess of t he amounts specifically permitted by the franchise fee ordinance. The time and manner of collecting the franchise fee is subject to the approval of the Commission. No franchise fee shall be payable by Company, if Company is legally unable to first collect an amount equal to the franchise fee from its customers in each applicable class of customers by imposing a surcharge in Company’s applicable rates for gas service, Company may pay the City the fee based upon the surcharge billed subject to subsequent red uctions to accounts for uncollectibles, refunds and correction of erroneous billings. Company agrees to make its records available for inspection by the City at reasonable times provided that the City and its designated representative agree in writing not to disclose any information which would indicate the amount paid by any identifiable customer or customers or any other information regarding identified customers. Equivalent Fee Requirement. 312 . 6 05 The separate ordinance imposing the fee shall not be effective against Company unless it lawfully imposes and the City monthly or more often collects a fee or tax of the same or greater equivalent amount on the receipts from sales of energy within the City by any other energy supplier, provided that, as t o such a supplier, the City has the authority to require a franchise fee or to impose a tax. The “same or greater equivalent amount” shall be measured, if practicable, by comparing amounts collected as a franchise fee from each similar customer, or by com paring, as to similar customers the percentage of the annual bill represented by the amount collected for franchise fee purposes. The franchise fee or tax shall be applicable to energy sales for any energy use related to heating, cooling or lighting, or t o run machinery and appliances, but shall not apply to energy sales for the purpose of providing fuel for vehicles. If the Company specifically City of Prior Lake 312/p 6 Business Regul ations consents in writing to a franchise or separate ordinance collecting or failing to collect a fee from another en ergy supplier in contravention of this Section, the forgoing conditions will be waived to the extent of such written consent. Continuation of Franchise Fee 312 .606 . If this franchise expires and the City and the Company are unable to agree upon terms o f 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. 312.700 T R EE TRIMMING Unless otherwise provided in any permit or other reasonable regul ation 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 mainten ance of any Gas Facilities installed hereunder, provided that Company shall hold the City harmless from any liability arising therefrom. 312 . 8 00 INDEMNIFICATION Indemnity of City 312 . 8 01 . 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 s hall 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. The City shall no t be indemnified if the injury or damage results from the performance in a proper manner of acts reasonable deemed hazardous by Company, and such performance is nevertheless ordered or directed by City after notice of Company’s determination. Def ense of City. 312 . 8 02 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 wi thin 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 c onsent shall not be unreasonable 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. City of Prior Lake 312/p 7 Business Regul ations 312 . 9 00 VACATION OF PUBLIC W AYS 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 wi th Minnesota Rules, 7819.3200 and applicable ordinances consistent with law. Except where required for a City improvement project, the vacation of any Public Way, after the installation of Gas Facilities, shall not operate to deprive Company of its rights to operate and maintain such Gas Facilities, until the reasonable cost of relocating the same and the loss and expense resulting from such relocation are first paid to Company. In no case, however, shall City be liable to Company for failure to specifica lly preserve a right - of - way under Minnesota Statutes, Section 160.29. 312.1000 ABANDONED FACILITIES Company may abandon underground gas Facilities in p l ace, provided at the city’s request, Company will remove abandoned metal or concrete encased conduit i nterfering with a City improvement project, but only to the extent such conduit is uncovered by excavation as part of the City improvement project. 312 .1 1 00 PROVISIONS OF ORDINA NCE . Severability 312 .1 1 01 . Every section, provision, or part of this Ordin ance 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 fr anchise 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 any other City ordinance conflicts with the provisions of this Ordinance, the provisions of this Ordinance shall prevail. Limitation on Applicability 312 .1 1 02 . 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 p erson (including the public at large) so as to constitute any such person as a third party beneficiary of the agreement 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. 312 . 12 00 AME NDMENT PROCEDURE . Either party to this franchise agreement may at any time propose that the agreement be amended. If an amendment is agreed upon by the parties, this Ordinance may be amended at any time by the City passing a subsequent ordinance declarin g 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 90 days after the effective date of the amendatory ordinance. City of Prior Lake 312/p 8