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1987-578 e ~ ~ ORDINANCE 87 -578 APPENDIX IV - A OF ORDINANCE ~66 A Restatement of Electric Franchise to Northern States Power, a Minnesota Corporation, its Successors and Assigns and Superceding any Previous Electric Franchise Thus Granted to the Company or its Predecessor Granting permission to Construct, Operate, Repair and Maintain an Electric Distribution System and Transmission Lines, Including Necessar~les, Lines, Fixtures and Appurtenances, for the Furnishing of Electric Energy to the Clty, Its Inhabitants, and others, and to Use Public Ways and Public Grounds of the Clty for Such Purposes. Section I. Definitions. The following words and terms for the purpose of this Ordinance are defined as follows: (1) "City" means the City of Hopkins, County of Hennepin, State of Minnesota. (2) "City Utility System" means the facilities used for providing sewer, water or any other public utility service owned or operated by Clty or agency thereof. (3) "Compa!!y" means Nor thern S ta tes Power Company, a Minnesota corporation, its successors and assigns. (4) "Notice" means a writing served by any party or parties on any other party or parties. Notice to Company shall be mailed to the Division General Manager thereof at 5309 West 70th Street, Edina, Minnesota 55435. Notice to City shall be mailed to the City Clerk. (5) "public~y" means any street, alley, or other public right-of-way within the City. (6) "Public Ground" means land owned by the City for park, open space or similar purpose, which is held for use in common by the public. (7) "Electrlc Facilities" means electric transmission and distribution towers, poles, lines, guys, anchors, ducts, fixtures and necessary appurtenances owned or operated by the Company for the purpose of providing electric energy for pU9lic use. Sectlon II Franchise. (1) Grant of Franchise. City hereby grants Company, for a period of twenty years from April 1, 1987, the right to transmit and furnish electric energy for light, heat, power and other purposes 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 of City subject to the provisions of this ordinance. Company may do all reasonable things necessary or customary to accomplish these purposes, subject, however, to zoning ordinances, other applicable ordinances, permit procedures, and to the further provisions of this franchise. (2) Effective Date; written Acceptance. This franchise shall be in force and effect from and after its passage and its acceptance by the Company, and its publication as required by law (and the City Charter). An acceptance by the Company must be filed with the City Clerk within 90 days after publication. (3) Service Rates and Area. The service to be provided and the rates to be charged by Company for electr1c service in City currently are subject to the jurisdiction of the Minnesota Public uti lit 1 e s C 0 mm i s s ion . The are a wit h i nth e C i t Y 1 n w h i c h the Company may provide electric service currently is subject to the provisions of Minnesota Statutes, Section 216B.40. ( 4 ) Pub 1 icE x pen s e . The e x p e' n s e 0 f pub 1 i cat ion 0 f t his ord1nance shall be paid by the Company. (5) Default. If either party asserts that the other party 1S in defauItin-the performance of any obl1gation hereunder, the complaining party shall notify the other party of the default and the desired remedy. The notification shall be written. If the dispute is not resolved within 30 days of the written notice, e1ther party may commence an action in District Court to 1nterpret and enforce this franchise or for such other relIef as may be permitted by law or equity for breach of contract, or either party may take any other action permitted by law. Sect10n III. Location, Other Regulation. (1) Location of Facilit1es. Electric Facilities shall be located and constructed so as not to interfere with the safety and convenience of ordinary travel along and over Publ1C Ways and they shall be located on Public Grounds as determined by the City. The Company's construction, reconstruction, operation, repa1r, maintenance and location of Electric Facilities shall be subJect to other regulations of the City. (2) Field Locations. The Company shall provide field locations for any of its underground Electric Facilities within a reasonable period of time on request by the City. The period of t1me will be considered reasonable if it compares favorably with the average time required by the cities in the same county to locate munic1pal underground facilities for the Company. (3) Street Openings. The Company shall not open or disturb the paved surface of any Public Way or Public Ground for any purpose without first having obtained permission from the City for which the City may impose a reasonable fee. Permit conditions imposed on the Company shall not be more burdensome than those imposed on other utilities for similar facilities or work. The Company may, however, open and disturb the paved surface of any Public Way or Public Ground without permission from the City where an emergency exists requiring the immediate repair of Electric Facilities. In such event the Company shall notify the City by telephone to the off1ce designated by the City before opening or distributing a paved surface of a Public Way or Public Ground. Not later than the second working day thereafter, the Company shall obtain any required permits and pay any required fees. (4) Restoration. After undertaking any work requiring the opening of any Public Way or Public Ground, the Company shall restore the same, including paving and its foundation, to as good condition as formerly eX1sted, and shall maintain the same in good condition for two years thereafter. The work shall be completed as promptly as weather permits, and if the Company shall not promptly perform and complete the work, remove all d1rt, rubbish, equipment, and material, and put the Public Way or Public Ground in the said condition, the City shall have, after demand to the Company to cure and the passage of a reasonable period of time following the demand, bu t not to exceed five days, the r igh t to make the restoration at the expense of the Company. The Company shall pay to the City the cost of such work done for or performed by the Clty, 1ncluding its administrative expense and overhead, plus ten percent addit10nal as liquidated damages. Th1S remedy shall be 1n addition to any other remedy available to the City. (5) Shared Use of Poles. The 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 the Company, by another electric utility, by a telephone utility, or by any cable television company or other form of communication company. In addition, the C1ty shall pay for any added cost incurred by the Company because of such use by City. Section IV. Relocations. (1) Relocation of Electric Facilities in Public Ways. Except as provided in Section IV., 3, if the City determines to vacate for a C1ty improvement project, or to grade, regrade, or change the line of any Public Way, or construct or reconstruct any City utility System in any Public Way, it may order the Company to relocate its Electric Facil1ties located therein. The Company shall relocate 1ts Electric Fac1lities at its own expense. The City shall give the Company reasonable notice of plans to vacate for a City improvement proJect, or to grade, regrade, or change the line of any Public Way or to construct or reconstruct any City Utility System. If a .' relocation is ordered within five years of a prior relocation of the same Electrical Facilities, which was made at Company expense, the City shall reimburse company for non-betterment expenses on a time and material basis, provided that if a subsequent relocation is required because of the extension of a City Utility System 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 reconnect at its own expense its facilities where such relocation, 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. (2) Relocation of Electric Facilities in Public Ground. Except as may be provided in Section IV, 3, City may require the Company to relocate or remove its Electric Fac1lit1es from Public Ground upon a finding by City that the Electric Facilities have become or will become a substantial impairment of the public use to which the Publ1C Ground is or will be put. The relocation or removal shall be at the company's expense. The provIsions of Section IV, 2, apply only to Electric Facilities constructed in reliance on a franchise and the Company does not waive its rights under an easement or prescript1ve right. (3) ProJects with State or Federal Fund1ng. Relocation, removal, or rearrangement of any Company fac1lities 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 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 facilities when a Publ1C Way is vacated, improved or realigned because of a renewal or a redevelopment plan which is f1nancially subsidized in whole or 1n part by the Federal Government or any agency thereof, unless the reasonable non-betterment costs of such relocation and the loss and expense result1ng therefrom are first paId to Company, but the City need not pay those portions of such for which reimbursement to it is not available. (4) Liabil!!y. Noth1ng in the Ordinance rel1eves any person from liability arising out of the failure to exercise reasonable care to avoid damaging Electric Facilities while performing any activity. Section v. Tree Trimm1ngs. The Company may trIm all trees and shrubs in the Publ1C Ways and Public Grounds of City interfering with the proper construct1on, operation, repair and maintenance of any Electr1c Facilities installed hereunder, provided that the Company shall save the City harmless from any llabil1ty arising therefrom, and subject to permit or other reasonable regulation by the City. '. Section VI. Indemnification. (l) The Company shall indemnify, keep and hold the City free and 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 Facilit1es located in the City. The City shall not be indemnified for losses or claims occasioned through its own negligence except for losses or clalms arising out of or alleging the City's negligence as to the issuance of permits for, or inspection of, the Company's plans or work. The C1ty shall not be indemnified if the injury or damage results from the performance in a proper manner of acts reasonably deemed hazardous by Company, and such performance is nevertheless ordered or directed by City after notice of Company's determination. (2) In the event a SU1t is brought agaInst the CIty under circumstances where th1S agreement to indemnIfy appl1es, the Company at its sole cost and expense shall defend the City 1n such suit If written notice thereof 1S promptly glven to the Company withIn a period wherein the Company is not prejud1ced by lack of such no t i ce . I f the Company is requ i red to 1ndemn1 fy and defend, it w1ll thereafter have control of such lit1gat1on, but the Company may not settle such litigation without the consent of the City, which consent shall not be unreasonably w1thheld. This section is not, as to third parties, a waiver of any defense or immunity otherwise available to the City; and the Company, in defending any action on behalf of the City shall be entitled to assert in any act10n every defense or immunity that the City could assert in its own behalf. Sect10n VII. Vacation of Public Ways. The City shall give the Company at least two weeks' prior written notice of a proposed vacation of a Public Way. Except where required for a City street or other 1mprovement proJect, the vacation of any Public Way, after the installat10n of Electric Facilities, shall not operate to deprive Company of its rights to operate and mainta1n such Electrical Fac1l1ties, 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 the Company for failure to specifically preserve a right-of-way, under M1nnesota Statutes, Section 160.29. Sect10n VIII. Change in Form of Government. Any change in the form of government of the City shall not affect the valid1ty of this Ordinance. Any governmental un1t succeeding the City shall, without the consent of the Company, succeed to all of the rights and obligations of the City provided 1n this Ord1nance. Section IX. Franchise Fee. (l) Separate Ordinance. During the term of the franchise hereby granted, and in lieu of any permit or other fees being imposed on the Company, the City may impose on the Company a franchise fee of not more than five percent of the Company's gross revenues as hereinafter defined. The franchise fee shall be imposed by a separate ordinance duly adopted by the City Council, which ordinance shall not be adopted until at least 60 days after written notice enclosing such proposed ordinance has been served upon the Company by certified mail. The fee shall not become effective untIl at least 60 days after written notice enclosing such adopted ordinance has been served upon the Company by certif1ed mail. Section II (5) shall constitute the sole remedy for solving disputes between the Company and the C1ty in regard to the 1nterpretation of, or enforcement of, the separate ordinance. No actIon by the City to implement a separate ordinance will commence until this ordinance is effective. No preexisting ordInance imposing a fee shall be effective against the Company unless it is specifically amended after the effective date of this ordinance followIng the procedures of this Sect10n IX for the adoption of a new separate ordinance. A separate ordinance which does not impose a uniform franchise fee on all revenues within the definition of gross revenues shall not be effect1ve against the Company. (2) Terms Def1ned. The term "gross revenues" means all sums, excluding any surcharge or similar addition to the Company's charges to customers for the purpose of reimbursing the Company for the cost resulting from the franchise fee, received by the Company from the sale of electr1city to 1ts retail customers within the corporate limits of the City. (3) Collect1on of the Fee. The franchise fee shall be payable not less often than quarterly, and shall be based on the gross revenues of the Company during complete billing months during the period for Wh1Ch payment is to be made. The payment shall be due the last business day of the month following the per10d for Wh1Ch the payment is made. The percent fee may be changed by ordinance from time to tIme; however, each change shall meet the same notice requirements and the percentage may not be changed more often than annually. Such fee shall not exceed any amount WhICh the Company may legally charge to its customers pr10r to payment to the City by impos1ng a surcharge equivalent to such fee in 1ts rates for electrIc serVIce. The Company may pay the City the fee based upon the surcharge billed subject to subsequent reductions to account for uncollectibles or customer refunds. The time and manner of collecting the franchise fee is subject to the approval of the Public utilitIes Commission, which the Company agrees to use best efforts to obtain. The Company agrees to make its gross revenues records available for inspection by the City at reasonable times. . ~ . . (4) Conditions on the Fee. The separate ord1nance imposing the fee shall not be effective against the Company unless it lawfully imposes and the City quarterly or more often collects a fee or tax of the same or greater percentage on the receipts from sales of energy within the City by any other energy supplier, provided that, as to such a supplier, the City has the authority to require a franchise fee or to impose a tax. The franchise fee or tax shall be applicable to energy sales for any energy use related to heating, cooling, or lighting, as well as to the supply of energy needed to run machinery and appliances on premises located within or adjacent to the City, but shall not apply to energy sales for the purpose of providing fuel for vehicles. SectIon X. Severability. If any portion of this franchise 1S found to be invalid for any reason whatsoever, the validity of the remainder shall not be affected. Section XI. Amendment. ThIS ordinance may be amended at any tIme by the C1ty passing a subsequent ordinance declaring the provIsIons of the amendment, which amendatory ordinance shall become effect1ve upon the f1l1ng of the Company's written consent thereto wIth the City Clerk within 90 days after the effective date of the amendatory ordInance. Section XII. PreV10US Franchises Superseded. Th1S franchIse supersedes any previous electric franchise granted to the Company or its predecessor. F1rst read at a regular meetIng of the of HopkIns on _'A-~ 'I , 1987, approved and ordered published on ~ /~ Council of the City and f1nally read, , 1987. J. Scott Renne C1ty Clerk Ellen Lavin Mayor Jerre Miller C1ty Attorney , f , " ... . I Minnesota Suburban N wspap rs, Inc. AFFIDAVIT OF PUBLICATION . STATE OF MINNESOTA) COUNTY OF HENNEPIN) Donald K. Mortenson ss , bemg duly sworn on an oath says that he/she IS the publisher or authOrized agent and employee of the publisher of the newspaper known as Hopkins Sa1lor , and has full knowledge of the facts which are stated below (A) The newspaper has complied With all of the reqUirements constituting qualificatIOn as a qualified newspaper, as provided by Mmnesota Statute 331A 02, 331A 07, and other applicable laws, as amended (B) The' printed Ordinance 87-578 . whiCh IS attached was cut from the columns of said newspaper, and was printed and published once each 29 Monday week, for 0 n e successive weeks, It was first published on , the of June 19 87, and was thereafter printed and published on every and Including day of 19_, and printed below IS , the a copy of the lower case alphabet from A to Z, both Inclusive, which IS hereby acknowledged as being the size and kind of type used In the compOSition and publicatIOn of the notice '_>'m:m.~~ I- m~ TITLE OperatIons Mana~er and swo n to before me on this I RATE INFORMATION (1) Lowest classified rate paid by commerCial users for comparable space (2) Maximum rate allowed by law for the above matter $ 1 85 per line (Line, word, or Inch rate) 401Cl: per line (Line, word, or Inch rate) 38Cl: per line (Line, word, or Inch rate) $ (3) Rate actually charged for the above matter $ .myJllJlgpkins day (Off..,11II hi ORDINANC:B APPENDIX IV - A Ol" e,latemeat of EleeIItte FI llIiaae,ola Corperallooi. - eedlall aay Pre~ to the Compaay ar." Coasuaet, opera istnbattoa System lnll Necesssry Peiiot~ ee" for the Fa~ abllaals, aad~_ ds of Ihe City far JIlj Secll~.. ons The Collowiqwo OrdIDan;e'1~ ed dS Collows , (l)'~iCbl das the Clly oC Ropi MlI\n~fir L (2) "C,'r;uIlIUy Syslem" meaDS sewer~wat~ or day olher pabllc-utIh e,l II ~ eocy lheroof . (JiC aay" means Northem E so lJon Its successors and a ( e" meaDS a WfltlDg serv 01 or parlles Nollce. O~~j1 01 enerdl Manager IhereoT<"at MIDnl'Sola 55435 Notice 10 C,ty slulU (' he Way" meaDS any slreet, Wd Ihe CIly 'I '. ~, ( lie Groaad" meaas.laoCl.o sp mllar purpose, whlclhi5!.1i pu ~ . '" rf --.. IflC F.cUl'les"-mea~$Iec poles, hnes,olIUYs, all 'Od ceo owned'oioper ate<l i leclrlc energy Cor publiC U BachlBe . \0 c~ I of Francblse CIly.herebY edrs Crom April 1, 1987, th rgy for hght, heat, power use wltlun and through now eXist or as they may Company may constr F'dclhtJes In, on,pver, un rounds oC CIty subject to t dY do dll reason3ble tlHn lhese purposes subject, h dble ordlDdnces. ~~Il . r this frdncjllse ""~A;..I~~ ~ Ive Date, WJ'IIIeP'~cept8 ; /feci from dnd-arteflts'pas, dnd ItS publlcatloD as n dcceptdnce;by the-Con ~ 90 days drt"" pubhcatlg e Rale8- aad Area. 1fIU\- h.1rge<!'bY;ColIII'~'>r et 10 Ihe Ju,ns4lCJ1011i":Pf II The dred wlthm the CI flC ~ervlce CUJ'lltIltly 's tutes, Secboa 216B 40. .pense The expens.e 01 yth~CompaD~ ,~ If ellher part)' ~",!' a~' y We. other, tlfl"aOOD sh'!l!. 3ll days DC the;w., actIon ID - DIS\!;W~ {:QJ ,for slicll' Other reheF. deh bf eonlrdct or e. led by Idw" ,. ~ , allon, Olher~Re'lllI.iIM' atl"n 01 F....'I"'es Electric . <0 d~ nol to lD~e.rCl!I'll; ~ I dlong dnd oVlf.,Pllbl1 ound. dS delerm"'" reconstrucllon operal1 cine F dc.htJes sball.l!.'ii to ..u h' "