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Ordinance 336• FRANCHISE ORDINANCE FOR RELIANT ENERGY MINNEGASCO ORDINANCE NO.336 CITY OF CHANHASSEN, CARVER COUNTY, MINNESOTA AN ORDINANCE GRANTING TO RELIANT ENERGY MINNEGASCO, A NATURAL GAS UTILITY, A DIVISION OF RELIANT ENERGY RESOURCES CORPORATION, A DELAWARE CORPORATION, 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 PUBLIC WAYS AND PUBLIC GROUNDS OF THE CITY FOR SUCH PURPOSES; AND PRESCRIBING CERTAIN TERMS AND CONDITIONS THEREOF. THE CITY COUNCIL OF CHANHASSEN ORDAINS: SECTION 1. DEFINITIONS. For purposes 1.5. Effective Date. The date on which the of this Ordinance, the following capitalized ordinance becomes effective under • terms shall have the following meanings: Section 2.2. 1.1. City. The City of Chanhassen, County of 1.6. Gas. Natural gas, manufactured gas, Carver, State of Minnesota. mixture of natural gas and manufactured gas or other forms of gas energy. 1.2. City Utility System. Facilities used for providing public utility service owned or 1.7. Gas Facilities. Gas transmission and operated by the City or agency thereof. distribution pipes, mains, lines, ducts, fixtures, and all necessary facilities, 1.3. Commission. The Minnesota Public equipment and appurtenances owned, Utilities Commission, or any successor operated or otherwise used by the agency or agencies, including an agency Company for the purpose of providing of the federal government that preempts gas energy for public use. all or part of the authority to regulate gas retail rates now vested in the 1.8. Non -Betterment Costs. Costs incurred Commission. by the Company from relocation, removal or rearrangement of Gas Facilities that do 1.4. Company. Reliant Energy Minnegasco, not result in an improvement to the a Division of Reliant Energy Resources Facilities. Corporation, its successors and assigns, including successors to assignees of those 1.9. Notice. A writing served by a party or portions of the Company that constitute parties on another party or parties. Notice • any part or parts of the Gas Facilities to Company must be mailed to: subject to this franchise. Reliant Energy Minnegasco ninety (90) days after publication of this V.P., Regulatory & Supply Service ordinance. 800 LaSalle Avenue Minneapolis, MN 55402 2.3 Non exclusive Franchise. This ordinance • does not grant an exclusive franchise. Notice to City must be mailed to: City of Chanhassen 2.4 Legal Fees. Each party is responsible for P. O. Box 147 its own legal fees incurred related to Chanhassen, Minnesota 55317 granting of this franchise. 1.10.Public Way. Any street, alley or other 2.5 Publication Expense. The expense of public right-of-way within the City. publication of this ordinance must be paid by the Company. 1.11. Public Ground. Land owned or otherwise controlled by the City for 2.6 Default: Dispute Resolution. If the City parks, open space or other public or Company asserts that the other party is purposes. in default in the performance of any obligation hereunder, the complaining party must notify the other party in writing SECTION 2. FRANCHISE. of the default and the desired remedy. Representatives of the parties must 2.1 Grant of Franchise. The City grants the promptly meet and attempt in good faith Company, for a period of twenty (20) to negotiate a resolution of the dispute. If years from the Effective Date, the right to the dispute is not resolved within thirty import, manufacture, transport, distribute (30) days after service of the notice, the • and sell Gas for public and private use within and through the limits of the City. parties may jointly select a mediator to facilitate further discussion. The parties This right includes the provision of Gas will equally share the fees and expenses of that is (i) manufactured by the Company the mediator. If a mediator is not used or or its affiliates and delivered by the if the parties are unable to resolve the Company, (ii) purchased and delivered by dispute within thirty (30) days after first the Company or (iii) purchased from meeting with the mediator, either party another source by the retail customer and may commence an action in District Court delivered by the Company. For these to interpret and enforce this franchise or purposes, the Company may construct, for such other relief as may be permitted operate, repair and maintain Gas Facilities by law or equity. in, on, over, under and across the Public Way and Public Ground subject to the 2.7 Continuation of Franchise. If this provisions of this ordinance. The franchise expires and the City and the Company may do all things reasonably Company are unable to agree on the terms necessary or customary to accomplish of a new franchise, the existing franchise these purposes, subject to other applicable will remain in effect until a new franchise ordinances, permit requirements and to is agreed upon, or until ninety (90) days further provisions of this ordinance. after the City or the Company serves written Notice to the other party of their 2.2 Effective Date. This franchise is intention to allow the franchise agreement effective from and after its acceptance by to expire. • the Company. Written acceptance or rejection of the franchise by the Company must be filed with the City Clerk within SECTION 3. CONDITIONS OF USE. as promptly as weather permits. If the Company does not promptly perform and 3.1 Location of Facilities. Gas Facilities complete the work, remove all dirt, • must be located, constructed, installed and maintained so as not to interfere with the rubbish, equipment and material, and restore the Public Way or Public Ground, City Utility System or the safety and the City may, after demand to the convenience of ordinary travel along and Company to cure and the passage of a over Public Ways. Gas Facilities may be reasonable period of time not less than located on Public Grounds as determined five calendar days following the demand, by the City. The Company's construction, make the restoration at the expense of the reconstruction, operation, repair, Company. The Company must pay to the maintenance and location of Gas Facilities City the cost of such work done for or is subject to other ordinances and performed by the City, including regulations of the City. administrative expense and overhead, plus ten percent of cost and administrative 3.2 Field Location. Upon request by the expense. This remedy is in addition to City, the Company must provide field any other remedies available to the City locations for any of its Gas Facilities for noncompliance with this section. within the period of time required by Given the remedy outlined in this section Minnesota State Statute 216D. 3.4 available to the City for noncompliance by the Company, the City 3.3 Permit Required. The Company may not hereby waives any requirement for the open or disturb the surface of any Public Company to post a construction Way or Public Ground without first performance bond, certificate of having obtained a permit from the City, insurance, letter of credit or any other for which the City may impose a form of security or assurance that may be • reasonable fee. The permit conditions required, under separate existing or future imposed on the Company may not be ordinance of the City. more burdensome than those imposed on other utilities for similar facilities or work. 3.5 Company Protection of Gas Facilities in The Company may, however open and Public Ways. The Company must take disturb the surface of any Public Way or reasonable measures to prevent the Gas Public Ground without a permit if (i) an Facilities from causing damage to persons emergency exists requiring the immediate or property. The Company must take repair of Gas Facilities and (ii) the reasonable measures to protect the Gas Company gives notice to the City before, Facilities from damage that could be if possible, commencement of the inflicted on the Facilities by persons, emergency repair. Within two (2) property or the elements. The Company business days after commencing the and the City will comply with all repair, the Company must apply for any applicable laws and codes when required permits and pay the required fees. performing work near the Gas Facilities. 3.4 Restoration. After completing work 3.6 Notice of Improvements. The City must requiring the opening of a Public Way or give the Company reasonable notice of Public Ground, the Company must restore plans for improvements to Public Ways or the same, including paving and its Public Ground. The notice must contain; foundation, to the condition formerly (i) the nature and character of the existing and maintain the paved surfaces improvements, (ii) the Public Ways or in good condition for two (2) years Public Grounds upon which the thereafter. The work must be completed 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 • Ground is involved, the order in which the work is to proceed. The notice must be given to the Company a sufficient length of time in advance of the actual commencement of the work to permit the Company to make any necessary additions, alterations, or repairs to its Gas Facilities. If streets are at final width and grade and the City has installed underground sewer and water mains and service connections to the property line abutting the streets prior to a permanent paving or resurfacing of such streets, and the Company's main is located under such street, the City may require the Company to install gas service connections prior to such paving or resurfacing, if it is apparent that gas service will be required during the five years following the paving or resurfacing. • SECTION 4. RELOCATIONS. 4.1 Relocation of Gas Facilities in Public Ways. If the City determines by the proper exercise of its police power to vacate a Public Way for a City improvement project, or to grade, regrade or change the alignment of any Public Way, or construct or reconstruct any City Utility System in any Public Way, the City may order the Company to relocate its Gas Facilities at the Company's own expense. The City must give the Company sufficient notice of plans to vacate for a City improvement project, or to grade, re - grade, or change the alignment of any Public Way or to construct or reconstruct any City Utility System. If a relocation is ordered within five (5) years of a prior relocation of the same Gas Facilities, which was made at Company expense, the City will reimburse the Company on a time and material basis for Non - Betterment Costs. If any subsequent relocation is required because of the extension of a City Utility System to a previously unserved area, the City may require the Company to make the subsequent relocation at the Company's expense. Nothing in this ordinance requires the Company to relocate, remove, replace or reconnect its Facilities at the Company's expense 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. The City will not require the removal of abandoned natural gas facilities in any case, unless these facilities are in direct conflict with a Public Way grade change or proposed City Utility System or City improvement. The provisions of this section 4.1 apply only to Gas Facilities constructed in reliance on this franchise and the Company does not waive its rights under an easement or prescriptive right in the Public Way. 4.2 Relocation of Gas Facilities in Public Ground. The City may, by the proper exercise of its police power, require the Company to relocate the Gas Facilities within or remove the Gas Facilities from Public Ground, upon a finding by City that the Gas Facilities have become or will become a substantial impairment of the public use or enjoyment to which the Public Ground is or will be put. The relocation or removal will be at the Company's expense. The provisions of this Section 4.2 apply only to Gas Facilities constructed in reliance on this franchise and the Company does not waive its rights under an easement or prescriptive right in the Public Ground. The City will not require the removal of abandoned natural Gas Facilities in Public Ground in any case, unless these facilities have become or will become a substantial impairment of the public use or enjoyment to which the Public Ground is or will be put. 4 4.3 Vacation of Public Ways. The City must give the Company at least two -weeks' • Notice of the proposed vacation of a Public Way. Except where required for a City street or other improvement project or as otherwise provided in Section 4.1, the vacation of a Public Way, after the installation of Gas Facilities, does not deprive the Company of its rights to operate and maintain the Gas Facilities until the reasonable cost of relocating the same and the loss and expense resulting from such relocation are first paid to the Company. Upon request of the Company, and if the City in its sole discretion determines that the vacation of Public Way does not require the relocation of existing Gas Facilities, the City shall reserve a utility easement to the Company, created by and within the document establishing the vacation. In no case will the City be liable to Company for failure to specifically preserve a right-of-way under Minnesota Statutes, Section 160.29. 4.4 Projects with Federal Funding. Relocation, removal or rearrangement of any Gas Facilities made necessary because of the extension into or through the City of a federally -aided highway project shall be governed by the provisions of Minnesota Statutes, Section 161.46, if funds for these purposes are available. SECTION 5. DEFENSE AND INDEMNIFICATION. 5.1 Terms. The Company shall indemnify, keep and hold the City, its elected officials, officers, employees, and agents free and harmless from any and all claims and actions on account of injury or death of persons or damage to property occasioned by the construction, maintenance, repair, removal, on or across the Public Ways and the Public Grounds. The City will not be indemnified for losses or claims alleged to be the result of negligence of the City, its elected officials, employees, officers, or agents, except for those arising out of the issuance of permits for, or inspection of the Company's plans or work. The City shall not be entitled to reimbursement for its costs incurred prior to notification to the Company of claims or actions and a reasonable opportunity for the Company to accept and undertake the defense. 5.2 Litigation. If such a suit is brought against the City under circumstances where the agreement in this Section 5 to indemnify applies, the Company at its sole cost and expense will defend the City in such suit if Notice thereof is promptly given to the Company within a reasonable period. If the Company is required to indemnify and defend, it will thereafter have control of such litigation, but the Company may not settle such litigation without the consent of the City, which consent will 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 the Company, in defending any action on behalf of the City is entitled to assert in any action every defense or immunity that the City could assert in its own behalf. SECTION 6. SUCCESSORS IN INTEREST. 6.1 This ordinance and the rights and obligations conferred hereby, is binding on and inures to the benefit of the City and its successors and on the Company and its successors and permitted assigns. SECTION 7. FRANCHISE FEE. 7.1 Separate Ordinance. The City reserves all rights under Minnesota Statutes, 5 Section 21613.36 or other law to require a franchise fee at any time during the term of this franchise. In addition to the • franchise fee, the Company shall be required to pay only such other fees, charges, costs or taxes which are generally required to be paid by other businesses or persons in the City. The franchise fee must be imposed by a separate ordinance adopted by the City Council, which ordinance may not be adopted until at least sixty (60) days after Notice enclosing such proposed ordinance has been served upon the Company by certified mail. A fee imposed under this section does not become effective until sixty (60) days after Notice enclosing the adopted ordinance has been served upon the Company by certified mail. SECTION 8. LIMITATION ON APPLICABILITY. 8.1 Limitation on Applicability. This Ordinance constitutes a franchise agreement between the City and the Company. No provision of this franchise inures 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 any one or more of the terms hereof, or otherwise give rise to any cause of action for any person not a party hereto. SECTION 9. PREVIOUS FRANCHISES SUPERSEDED. 9.1 Previous Franchises superseded. This franchise supersedes and replaces previous franchises granted to the Company or its predecessors. SECTION 10. AMENDMENTS. • 10.1 Amendments. This ordinance maybe amended at any time by the City. An amendatory ordinance becomes effective upon the filing of the Company's written consent thereto. SECTION 11. SEVERABILITY. 11.1 Severability. If any portion of this franchise is found unenforceable for any reason, the validity of the remaining provisions will not be affected. Passed and approved May 13, 2002 yor ATTE LLL& Clerk FRANCHIS&.ORDJIANCE ,,FOR RELIANT4.ENERGY, ,MD,JNEGASCO O INANCE .N0: ;:3.3 6 CITY_ ` OI -C S CARVE_ R. - P' d0� SODA -AN TO RELIANT ENERGY=:IVIINNEGASCO, A. NATURAL`9A ,VnLITY, A DIVI- SION,',OFRELANT :.;ENERGY' ,RE- SOURCES1CORPORAtION, A DELA- WARE COLORATION, ITS SUCCES- SORS AND ASSIGNS, ANONEXCT�U- SIVE FRANCHISE TO CONSTRUCT, OPERATE, REPAIR AND MAINTAIN FACILITIES AND EQUIPMENT FOR THE TRANSPORTATION, DISTRI- BUTION, MANUFACTURE AND SALE OF GAS ENERGY FOR PUBLIC AND PRIVATE USE . AND' TO USE PUBLIC WAYS' AND , PUBLIC GROUNDS OF THE CITY FOR SUCH PURPOSES; AND PRESCRIBING CERTAIN TERMS AND CONDI- TIONS THEREOF., THE CITY COUNCIL OF CHANHASSEN ORDAINS: SECTION 1. DEFINITIONS. For purposes of this Ordinance, the following capitalized terms shall have the following meanings: City. The City of Chanhassen, County of Carver, State of Minnesota.- ' City Utility System. Facilities used for providing public utility service owned or operated by the City or agency thereof. Commission. The Minnesota Public Utilities Commission, or any successor agency or agencies, including an agency of the federal government that preempts all or part of the authority to regulate gas retail rates now vested in the Commis- sion. Company. Reliant Energy Minnegasco, a Division of Reliant Energy Resources Corporation, its successors and assigns, including successors to as- signees of those portions of the Company that constitute any part or parts of the Gas Facilities subject to this franchise. Effective Date. The date on which . tie'. 'ordinance becomes effective under. Section 2.2. Gas. Natural gas, manufactured gas, mixture of natural gas and manufactured gas or other forms of gas energy. Gas Facilities. Gas transmission and distribution pipes, mains, lines, ducts, fixtures, and all necessary facilities, equip- ment and appurtenances owned, oper- ated or otherwise used by the Company for the purpose of providing gas energy for public use. Non -Betterment Costs. Costs in- curred by the Company from relocation, removal or rearrangement of Gas Facili- ties that do not result in an improvement to the Facilities. Notice. A writing served by a party or parties on another party or parties. Notice to Company must be mailed to: Reliant Energy Minnegasco , V.P., Regulatory & Supply Service 800 LaSalle Avenue Minneapolis, MN 55402 Notice to City must be mailed to: City of Chanhassen P. O. Box 147 Chanhassen, Minnesota 55317 Public Way. Any street, alley or other public right-of-way within the City. Public Ground. Land owned or oth- erwise controlled by the City for parks, open space or other public purposes. SECTION 2.FRANCHISE. Ti %'rnn♦ cS rri1n A1;CP � 1 r�f7P ltv Qmnfir,' Affidavit of Publication Southwest Suburban Publishing State of Minnesota) )SS. County of Carver ) Stan Rolfsrud, being duly sworn, on oath says that he is the publisher or the authorized agent of the publisher of the newspapers known as the Chaska Herald and the Chanhassen Villager and has full knowledge of the facts herein stated as follows: (A) These newspapers have complied with the requirements constituting qualification as a legal newspaper, as provided by Minnesota Statute 331 A.02, 331 A.07, and other applicable laws, as amended. (B) The printed public notice that is attached to this Affidavit and identified as No. 7 was published on the date or dates and in the newspaper stated in the attached Notice and said Notice is hereby incorporated as part of this Affidavit. Said notice was cut from the columns of the newspaper specified. Printed below is a copy of the lower case alphabet from A to Z, both inclusive, and is hereby acknowledged as being the kind ann �of type used in the composition publication ublication of the Notice: abcdefghijklmnopgrstu Subscribed and sworn before me on this _day of �C-^�-�- , 2002 Notary Public ktan Rolfsrud, General Manager or his designated agent sro�aa� GW€N M. PADUENZ NOTARY PUSLIC I�1INNESOTA My Corrimi�ion Expires Jan. 31, M5 RATE INFORMATION Lowest classified rate paid by commercial users for comparable space.... $20.00 per column inch Maximum rate allowed by law for the above matter ................................ $20.00 per column inch Rate actually charged for the above matter ................................................ $10.23 per column inch SECHUlV Z. MA M rua�... ,E4 g- ' `i td of Vi=chlse_�The grants ''=the Company; for. aperiod oftwenty (20) tive D gh fromth�Ef�ec ate;then t to• import; manufacture; transport; trib_. "ute and sell_ Gas foi pulli�c�and private use T. 'w thin'and through the lunits of the city:. .Y ' right includes the; provisi iA of Gas #fiat is by the Conpainy_ Y i#a and l liv66d. by the Com- hveredb the .,patijr"(u)iurchas and de y based from another ,.-C`ompao�orC�u�pearc Iy; thy' ret:ci�ston%er: acid cieliv- e,pur- ses the t oinp`a iiiay cgnstruct , op- te,:repairtand i tainta4, Facilities . °iiti;; orii over�unctea`daacross t1ieP-ub1iC ,= n � . '°'� ;ids Y�:�.::: •,,;.,,., r?G'aaii# P`uihcruinu$ject to'the provisgnsottns'ordinaice ;T1ie:Com- pang may do tilt things reasonably neces- nary or; csforriary to, accomplish these purposes,,`subleq tq,,6 , er'applicable or- dinances ermit r`e _„ • ev eats and to fur- ` ther provisions of this ordinanee. Effective"Date. This franchise is ef- fective from and after its acceptance by the Company. Written acceptance, or re - ejection of of the franchise by, the Company must be filed with the City Clerk within ninety (90) days after publication of this ordinance., Non exclusive Franchise. This ordi- nance does not grant" an exclusive. fran- Le ual Fee " w 4� ;,; ,+ g s: Each arty is responsible for- its own, legat fees incurred related to -granting of this franchise. - Publication Expense. The expense of publication ofthis ordinance must be paid by the Company. Default: Dispute Resolution." If the City or Company asserts that the 'other party is in default in the performance of any obligation hereunder, the complain- ing party must notify the other party in writing of the default and the desired remedy. Representatives of the parties must promptly meet and attempt in good faith to negotiate a restitution of the dis-, ute. If the' f< p , dispute is not resolved within thu-ty (0) days after service of ttie notice, the partiesxnay jointly seleci a mediator 6 facilitate further discision, :The par- -shire1 Ae� fees and. ex-'- %famedatorisnot 0 ° A after . , 4 q , .�vnth"the;, mediator .;either Cy ycommeNtanaetionimDistrict chile interpret and `enforce this` fran- or for such" other relief as may be �ernutted" by l vv: or" e4uity Mc OW14tiattft of;�1*'rancliise ifthis hise," e7 vk ' and. the ; Ci e a? ?.. r C 1 . and, th Ta�, ,cable to e'on tiie terms Oil a erustingfiratcluse Comp sery s 1`o c .. Xr , , tx e to the oilier part of ttfeii intention'to alloi the fi atichise agreetrient to expire: _ r i., SECTION', 3. ' - CONDITIONS' OF tna txolii.of'acihties`.Gasacilities kip.S �tysteiri or; the safes and �ys+a'}e�apib-y 7 f �o FTC f.. t:�'ft 1'+Y._ 'difi n'avetalong'and ct t? ays a, lwaq be4J nay,,N Fohtre'asne ?auceand ovationofGasfi6ifi x ..on! re&a- 4 en nedyis in iadition o any available 6"the'City for *i6tilii s6ction. Given, in this �`s'6ction'3.4` 'City fornoncompliance' V�Afie city h6jeb Y waives, t:fQr`.tithe ompanyto' post, e bond) C ceftifi- 1 01 ofib-'redit-or any y10 assurance that t le r �IX -Pm TO oz n 00-y' ti T GasFa6lities in,�'ub�ic - -'Vtasie!-,-qmpanyniust take `reasonable "fiablO, measures to pr'evefifthe Gas' Fa6lities'11'r-oln"causing damage to persons or property, " The C qmpany musttakereas- 6nablem�' asures to protect the Gas facilities otai Lai**atpo,tild. be inflicted;q b %y persons property 0r-Ad,ij6jjj"-f J ompag r i and the Ckty,--"' cable la t,� 4PP es,w -Qrnun 9 work neafl, No, mtiaie C tyMdAgve Mi hi r% tutu we �X-j — -----r-J -—-- cable laws and codes when performing work near the Gas Facilities. ' , Notice. of Impiovetnents: The City must give tiie Company reasonable notice ofplans forimpiovementstoPublic Ways or Public. Grou>Kl: The notice must con- tain; (i) the aa'tut`e `and dharacter of the improvements; (ii)_the Public Ways or Public Groundsupon which the improve- ments are to.beinade, (iii)the extentofthe improvements, (iv) the time when the City will start the work, and, (v) if more than one Public Way or Public Ground is involved, the order inwhich the work is to proceed. The notice must be given to the Company a sufficient length of time in advance of the actual commencement of the work to permit the Company to make any necessary additions, alterations, or repairs to its Gas Facilities. If streets are at final width and grade and the City has installed underground sewer and water mains and service connections to the prop- erty line abutting the streets prior to a permanent paving or resurfacing of such streets, and the Company's main is lo- cated under such street, the City may require the Company to install gas service connections prior to such paving or resur- facing, if it is apparent that gas service will be required during the five years following the paving or resurfacing. SECTION 4. RELOCATIONS. Relocation ofGas Facilities in Public Ways. if the City determines by the proper exercise of its police power to vacate a Public Way for a City improve- ment proj ect, or to grade, regrade or change the alignment of any Public Way, or con- struct or reconstruct any City Utility System in any Public Way, the City may order the Company to relocate its Gas Facilities atthe Company's own expense. The City must give the Company suffi- cient notice of plans to vacate for a City improvement project, or to grade, re - grade, or change the alignment of any Public Way or to construct or reconstruct any City Utility System. If a relocation is ordered within five (5) years of a prior relocation ofthe same Gas Facilities, which was made at Company expense, the City w ill reimburse the Company on a tune and material basis forNon-Betterment Costs. If any subsequent relocation is required because of the extension of a City Utility System to a previously unserved area, the City may require the Company to make the subsequent relocation at the Company's expense. Nothing in this ordinance requires the Company to relo- cate, remove, replace or reconnect its Facilities atthe Company's expensewhere such relocation, removal, replacement or reconstruction is solely for the conve- nience of the City and is not reasonably necessary for the construction or recon- struction of a Public Way or City Utility System or other City improvement. The City will not require the removal of aban- doned natural gas facilities in any case, unless these facilities are in direct conflict with a Public Way grade change or pro- posed City Utility System or City im- provement. The provisions of this sec- tion 4.1 apply only to Gas Facilities constructed in reliance on this franchise and the Company does not waive its rights under an easement or prescriptive right in the Public Way. 4.2 Relocation of Gas Facilities in Public Ground. The City may, by the proper exercise of its police power, re- quire the Company to relocate the Gas Facilities w ithin or remove the Gas Facili- quire the Company to relocate the vas Facilities within or remove the Gas Facili- ties from Public Ground, upon a finding by City that the Gas Facilities have be- come orwilibecome a substantial impair- ment of the public use or enjoyment to whichthe Public Ground is or will be put. The relocation or removal will be at the Company's expense. The provisions of this Section 4.2 apply only to Gas Facili- ties constructed in reliance on this fran- chise andthe Company does not waive its rights under an easement or prescriptive right in the Public Ground. The City will not require the removal of abandoned natural Gas Facilities in Public Ground in any case, unless these facilities have be- come or will become a substantial impair- ment of the public use or enjoyment to which the public Ground is or will be put. - 4.3 Vacation of Public Ways. The City must give the Company at least two - weeks' Notice of the proposed vacation of a Public Way. Except where required for a City street or other improvement project or as otherwise provided in Sec- tion 4.1, the vacation of a Public Way, after the installation of Gas Facilities, does not deprive the Company of its rights to operate and maintain the Gas Facilities until the reasonable cost of relo- cating the same and the loss and expense resulting from such relocation are first paid to the Company. Upon request of the Company, and if the City in its sole discretion determines that the vacation of Public Way does not require the relocation of existing Gas Fa- cilities, the City shall reserve a utility easement to the Company, created by and within the document establishing the va- cation. In no case will the City be liable to Company for failure to specifically pre- serve a right-of-way under Minnesota Statutes, Section 160.29. 4.4 Projects with Federal Funding. Relocation, removal or rearrangement of any Gas Facilities made necessary be- cause of the extension into or through the City of a federally -aided highway project_ shall be governed by the provisions of Minnesota Statutes, Section 161.46, if funds for these purposes are available. SECTION 5. DEFENSE AND IN- DEMNIFICATION. 5.1 Terms. The Company shall indemnify, keep and hold the City, its elected officials, officers, employees, and agents free and harmless from any and all claims and actions on accountofinjury or death of persons or damage to property occasioned by the construction, mainte- nance, repair, removal, on or across the Public Ways and the Public Grounds. The City will not be indemnified for losses or claims all eged to be the result of negligence of the City, its elected officials, employ- ees, officers, or agents, except for those arising out of the issuance of permits for, or inspection of the Company's plans or work. The City shall not be entitled to reimbursement for its costs incurred prior to notification to the Company of claims or actions and a reasonable opportunity for the Company to accept and undertake the defense. 5.2 Litigation. If such a suit is brought against the City under circum- stances where the agreement in this Sec- tion 5 to indemnify applies, the Company at its sole cost and expense will defend the City in such suit if Notice thereof is promptly given to the Company within.a Pen reasonable period. If_ the Company is not opei required to indemnify and defend, it will tlonJtomoemmiyaFFAl ,..... at As sole cost and expense will defendthe City in such suit if Notice thereof is promptly given to the Company within a reasonable period. If the Company is required to indemnify and defend, it will thereafter have control of such litigation, but the Company may not settle such litigation withoutthe consent of the City, which consent will not be unreasonably withheld. This section is not as to third parties a waiver of any defense or immu- nity otherwise available to the City; and the Company, in defending any action on behalf of the City is entitled to assert in any action every defense or immunity that the City could assert in its own behalf. SECTION 6. SUCCESSORS IN INTEREST. This ordinance and the rights and obligations conferred hereby, is binding on and inures to the benefit ofthe City and its successors and on the Company and its successors and permitted assigns. SECTION 7. FRANCHISE FEE. Separate Ordinance. The City re- serves all rights under Minnesota Stat- utes, Section 21613.36 or other law to require a franchise fee at any time during the term of this franchise. In addition to the franchise fee, the Company shall be required to pay only such other fees, charges, costs or taxes which are generally required to be paid by other businesses or persons in the City. The franchise fee must be imposed by a separate ordinance adopted by the City Council, which ordi- nance may not be adopted until at least sixty (60) days after Notice enclosing such proposed ordinance has been served upon the Company by certified mail. A fee imposed under this section does not become effective until sixty (60) days after Notice enclosing the adopted ordi- nance has been servedupon the Company by certified mail. SECTION 8. LIMITATION ON APPLICABILITY. Limitation on Applicability. This Ordinance constitutes a franchise agree- ment between the City and the Company. No provision of this franchise inures 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 any one or more of the terms hereof, or otherwise give rise to any cause of action for any person not a party hereto. SECTION 9. PREVIOUS FRAN- CHISES SUPERSEDED. Previous Franchises superseded. This franchise supersedes and replaces previ- ous franchises granted to the Company or its predecessors. SECTION 10. AMENDMENTS. Amendments. This ordinancemay be amended at any time by the City. An amendatory ordinance becomes effective upon the filing of the Company's written consent thereto. SECTION 11. SEVERABILITY. Severability. If any portion of this franchise is found unenforceable for any reason, the validity of the remaining pro- visions will not be affected. Passed and approved May 13, 2002 Mayor ATTEST: Clerk (Published in the Chanhassen Villager on Thursday, June 6, 2002; No. 4727)